{<**A 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


OF 


EXPERT  TESTIMONY. 


BY 


HENRY  WADE  ROGERS,  A,  M.,  LL.D,, 

PRESIDENT    OF    THE    NORTHWESTERN    UNIVERSITY:     FORMERLY     DEAN 
OF    THE   LAW   SCHOOL   OF   THE  UNIVERSITY   OF   MICHIGAN. 


SECOND  EDITION.    REWRITTEN  AND  ENLARGED. 


ST.  LOUIS,  MO. : 
CENTRAL  LAW  JOURNAL  COMPANY, 

LAW   PUBLISHERS  AND  PUBLISHERS  OF  THE 

CENTRAL  LAW  JOURNAL. 

1891. 


COVYKIGHT,  18S3. 
BY 

HKNKY  WADE  ROGK.HS. 

OM'YKIGHT,    1891, 
BY 

HENKY  WADE  Ro<;n:-. 


Louis,  No..  Printed  by  Central  Law  Journal  Company 


TO    THE 

HONORABLE  THOMAS   M.  COOLEY,  LL.  D.f 

Chairman  of  the  Interstate  Commerce  Commission, 
THIS    BOOK    IS    INSCRIBED, 

IN  APPRECIATION  OF  HIS  FRIENDSHIP  AND  THE  VIRTUES. 
OF  HIS  PRIVATE  LIFE,   AS  WELL  AS  IN  RECOG- 
NITION OF  HIS  EMINENCE  AS  A  JURIST 
AND  HIS  FAME  AS  A  JUDGE. 


PREFACE  TO  THE  SECOND  EDITION. 

In  the  Preface  to  the  first  edition  of  this  work, 
the  author  stated  its  purpose  to  be  to  furnish  to  the 
practitioner  a  more  extended  presentation  of  the 
law  relating  to  the  testimony  of  experts  than  the 
treatises  on  evidence  afforded.  It  seemed  to  him 
desirable  that  the  law  on  this  important  subject 
should  be  set  forth  more  in  detail  than  it  had  been 
found  practicable  to  do  in  the  general  treatises  on 
the  law  of  evidence.  Writers  on  the  general  sub- 
ject had  made  no  adequate  attempt  to  bring  to- 
gether the  numerous  cases  relating  to  the  testimony 
of  experts,  and  as  the  subject  was  one  of  great  and 
growing  importance,  it  was  deemed  wise  that  a 
work  on  expert  testimony  should  be  prepared  to 
supply  what  seemed  to  be  an  evident  want. 

The  first  edition  of  the  work  having  been  for 
some  time  exhausted,  and  a  second  edition  having 
become  necessary,  the  author  has  entirely  rewritten 
the  work.  This  has  made  necessary  changes  in  the 
arrangement  of  the  work,  and  the  numbering  of 
the  sections  will  be  found  somewhat  different  from 
those  in  the  former  edition.  So  great  changes  in 


vi  PKI-: FACE  TO  THE  SECOND  EDITION. 

arrangement  have  been  made  that  no  reference  is 
given  to  the  sections  of  the  first  edition.  It  is  be- 
lieved that  no  great  inconvenience  will  result  from 
this,  as  the  order  of  the  chapters  remains  the  same, 
and  the  statement  of  the  sections  at  the  beginning 
of  each  chapter  will  readily  indicate  where  the 
particular  subjects  discussed  are  to  be  found. 

The  author  believes  that  the  second  edition  will 
be  found  considerably  more  valuable  than  the  first. 
He  has  added  an  additional  chapter  —  on  the 
Weight  of  Expert  Testimony  —  which  he  hopes 
may  be  found  to  be  helpful.  A  large  number  of 
additional  cases  have  been  added,  many  of  which 
are  of  no  little  importance. 

While  the  author  entitles  his  work  The  Law  of 
Kxpert  Testimony,  the  reader  will  find  that  the 
treatment  of  the  subject  necessitates  a  statement  of 
the  rules  of  law  governing  Opinion  Evidence  gen- 
erally. The  law  relating  to  the  admission  of  the 
opinions  of  non-expert  witnesses  is  stated  with  all 
the  fullness  which  seemed  to  be  desirable. 

HENRY  WADE  ROGERS. 

J         Northwestern  University,         ) 
I    Evaaston,  111.,  November,  1890.    <j 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

THE    ADMISSIBILITY  IX    EVIDENCE   OF  THE   OPINIONS   OF 
ORDINARY  AND  EXPERT  WITNESSES. 

SECTION. 

1.  The  Term  Expert  Defined. 

2.  The  Practice  of  Admitting  Expert  Testimony  an  Ancient  One. 

3.  The  Competency  of  Non-Professional  Witnesses  to  Give  Opinion 

Evidence. 

4.  The  Admissibility  in  Evidence  of  the  Opinions  of  Non-Profes- 

sional Witnesses  in  Cases  of  Necessity. 

5.  The  Inadmissibility  of  Opinion  Evidence. 

6.  When  Expert  Testimony  is  Admissible. 

7.  Meaning  of  the  Terms  Science  and  Art. 

8.  When  the  Opinions  of  Experts  are  Inadmissible. 

9.  The  Question  of  the  Admissibility  of  Expert  Testimony  is  for 

the  Court. 

10.  Cases  Illustrative  of  the  Inadmissibility  of  the  Opinions  of  Ex- 

perts. 

11.  The  Inadmissibility  of  Opinions  Founded  on  a  Theory  of  Morals 

or  Duty. 

12.  The  Inadmissibility  of  Opinions  on  Abstract  Questions  of  Science 

not  Related  to  the  Facts  in  Issue. 

13.  Inadmissibility  of  Opinions  Based  on  Speculative  Data. 

14.  Admissibility  of  the  Testimony  of  Experts  Who  Have  Made  Ex 

Parte  Investigations. 

CHAPTER    II. 

THE  COMPETENCY  OF  EXPERT  WITNESSES. 
SECTION. 

15.  The  Qualification  of  the  Witness  to  Testify  as  an  Expert  Must 

First  be  Shown. 


Vlll  TABLE    OF    CONTENTS. 

16.  The  Competency  of  the  Witness  a  Question  for  the  Court. 

17.  Preliminary  Examination  of  the  Expert. 

18.  Competency  of  Experts  Whose  Knowledge  is  Derived  from  Ex- 

perience. 

19.  Competency  of  Experts    Whose  Knowledge  is    Derived  from 

Study. 

20.  Competency  of  Experts  Whose  Knowledge  is  Derived  from  Ob- 

servation. 

21.  Upon  What  the  Competency  of  Experts  Rests. 

22.  The  Competency  of  the  Witness  as  a  Subject  of  Review  in  an 

Appellate  Court. 

23.  How  the  Objection  to  the  Competency  Should  be  Taken. 

I   24.    Competency  as  Dependent  on  Whether  the  Expert  has  Heard 
the  Testimony. 

25.  Competency  of  Experts  in  Particular  Cases. 

CHAPTER  III. 

THE  EXAMINATION  OF  EXPERT  WITNESSES. 

SECTION. 

26.  Mode  of  Examination  of  Expert  Witnesses. 

27.  The  Hypothetical  Question. 

28.  The  Form  of  the  Hypothetical  Question. 

29.  The  Form  of  the  Hypothetical  Question — The  Subject  Continued. 

30.  The  Hypothetical  Question  is  not  to  be  Based  on  the  Opinions 

of  Other  Experts. 

31.  When  Questions  Need  not  be  Hypothetical. 

32.  Instructions  to  the  Jury  Concerning  Testimony  Based  on  Hypo- 

thetical Questions. 

33.  The  Hypothetical  Question  on  the  Cross-Examination. 

34.  Questions  to  Experts  Should  not  Embrace  Questions  of  Law. 

35.  Questions  to  Experts  as  to  Particular  Cases. 

36.  An  Expert  Cannot  be  Asked  for  an  Opinion  on  Facts  not  Stated. 

37.  Other  Matters  Pertaining  to  the  Examination  and  Cross-Exam- 

ination of  Experts. 

38.  General  Rules  Governing  the  Examination  of  Witnesses. 

39.  Excluding  Experts  from  the  Court  Room  During  the  Examina- 

tion of  Witnesses. 

40.  Right  of  Court  lo  Limit  Number  of  Expert  Witnesses. 

41.  By  Whom  Expert  Witnesses  are  Selected. 

CHAPTER  IV. 

EXPERT   TESTIMONY   IN  MEDICINE,  SURGERY   AND 
CHEMISTRY. 

SECTION. 

42.  Competency  of  Physicians  to  Testify  as  Exps 


TABLE    OF    COM  KXTS.  IX 

43.  Disqualification  Arising  from  Information  Acquired  While  At- 

tending Patient. 

44.  Cases  inWhich  Physicians  may  Testify  Notwithstanding  the  Pro- 

hibitory Statutes. 

45.  Partial  Waiver  of  the  Privilege. 

46.  Opinions  Based  on  Statements  Made  out  of  Court  and  not  Under 

Oath. 

47.  Opinions  Based  in  Part  on  Declarations  of  Patients. 

48.  Opinions  as  to  the  Condition  of  a  Patient. 

49.  Opinions  as  to  Cause  of  Death. 

50.  The  Nature  and  Symptoms  of  Disease. 

51.  Medical  Testimony  Relating  to  Wounds. 

52.  Who  are  Competent  to  Testify. 

53.  What  Testimony  is  Admissible  Concerning  Wounds. 

54.  Detection  of  Poisons  by  Experts. 

55.  Who  are  Experts  in  the  Detection  of  Poisons. 

56.  Chemical  Analysis  of  Poison  not  Necessary,  When. 

57.  Chemical  Analysis  of  Contents  of  Stomach. 

58.  Order  of  Research  in  Analysis  for  Poisons. 

59.  Expert  Testimony  on  the  Subject  of  Blood. 

60.  Whether  Ordinary  Witnesses  may  Testify  as  to  Blood  Stains. 

61.  Blood  Stains — Proper  Question  Concerning. 

<;•-!.     Miscellaneous  Cases  in  Which  Opinions  of  Chemists  Have  Been 
Received. 

63.  Expert  Testimony  on  the  Subject  of  Hair. 

64.  Expert  Testimony  in  Malpractice  Cases. 

65.  Expert  Testimony  in  Cases  of  Rape. 

66.  Expert  Testimony  in   Cases  of  Abortion,  Pregnancy  and  Seduc- 

tion. 

67.  Opinions  of  Non-Professional  Witnesses  as  to  Mental  Condition. 

68.  Expert  Testimony  as  to  Mental  Condition. 

69.  Form  of  Question  as  to  Mental  Condition. 

70.  Evidence  Bearing  on  Question  of  Insanity. 

71.  Opinions  Concerning  the  Discretion  of  a  Person  of  Non-Age. 

72.  Right  to  Order  an  Examination   of  the  Person  by  Medical  Ex- 

perts in  Cases  of  Alleged  Impotency. 

73.  Who  Should  be  Appointed  to  Make  the  Examination, 

74.  When  Compulsory  Examination  in  Such  Cases  Will  not  be  Or- 

dered. 

75.  Summoning  Experts  to  Assist  in  Determining  the  Proper  Inter- 

rogatories. 

76.  The  Subject  of  Inquiry — Structural   Defect — Impracticability  of 

Consummation. 

77.  Defraying  the  Expenses  of  the  Examination  by  the  Expert -. 

78.  Compulsory  Examination  in  Criminal  Cases. 

79.  Compulsory  Examination  in  Actions  for  Damages. 


X  TAULK    OF    CONTKXTS. 

80.  Refusal  to  be  Examined  by  a  Particular  Expert  Who  is  Person- 

ally Obnoxious. 

81.  The  Opinions  of  Medical  Men  in  Miscellaneous  Cases. 

82.  Opinions  of  Xon-Professional  Witnesses  on  Questions  Related  to 

Medical  Science. 

83.  Experts  in  the  Diseases  of  Animals. 

CHAPTER  V. 

EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW. 

SECTION. 

84.  The  Law  as  a  Subject  for  the  Testimony  of  Experts. 

85.  Of  what  Laws  Courts  take  Judicial  Notice  and  Expert  Testi- 

mony is  not  Received. 

86.  Of  what  Laws  Courts  do  not  take  Judicial  Notice,  and  Expert 

Testimony  may  be  Received. 

87.  Proof  of  the  Unwritten  Law  of  a  Foreign  State. 

88.  Proof  by  Experts  of  the  Written  Law  of  Foreign  States — Allowed 

in  England. 

89.  Manner  of  Proof  in  the  United  States  of  the  Written  Law  of 

Foreign  States. 

90.  Proving  the  Written  Law  in  the  Discretion  of  the  Court,  by  the 

Testimony  of  Experts. 

91.  Expert  Testimony  as  to  the  Construction  and  Interpretation   of 

Written  Law. 

92.  Presumption  that  Law  is  Unwritten. 

93.  Presumption  that  the  Law  Remains  Unchanged. 

94.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law. 

95.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law — The 

Rule  in  England. 

96.  Where  Knowledge    of  the  Foreign  Law  Must  Have  Been  Ac- 

quired. 

97.  Right  of  Expert  to  Cite  Text  Books,  Decisions,  Codes,  etc. 

98.  How  the  Citations  are  to  be  Regarded. 

99.  Whether  the  Question  of  Foreign  Law  is  for  the  Court  or  Jury. 

100.  Testimony  as  to  Usage  and  Practice  of  Courts  of  Another  State. 

101.  Testimony  as  to  Powers  and  Obligations  of  an  Attorney  in  his 

Relations  to  his  Clients. 

102.  The  Value  of  Legal  Services. 

CHAPTER  VI. 

EXPERT  TESTIMONY  ON  THE  TRADES  AND  ARTS. 

SECTION. 
193.    Testimony  of  Nautical  Men. 

104.  Testimony  of  Railroad  Men. 

105.  Testimony  of  Insurance  Men. 


TABLE    OF    rO.XTKXTS.  XI 

10G.  Testimony  of  Civil  Engineers. 

107.  Testimony  of  Surveyors. 

108.  Testimony  of  Millers  and  Mill-wrights. 

109.  Testimony  of  Machinists. 

110.  Testimony  of  Mechanics. 

111.  Testimony  of  Masons. 

112.  Testimony  of  Farmers  and  Gardeners. 

113.  Testimony  of  Cattlemen. 

114.  Testimony  of  Painters  and  Photographers. 

115.  Testimony  of  Lumbermen. 

116.  Testimony  of  Experts  in  Patent.  Trade-mark  and  Copyright 

Cases. 

117.  Testimony  of  Business  Men  as  to  Usage. 

118.  Testimony  as  to  Technical  Terms  and  Unusual  Words. 

119.  Translation  by  Experts  of  Writings  from  a  Foreign  Language. 

120.  Opinions  of  Experts  in  Miscellaneous  Cases. 

CHAPTER  VII. 

EXPERT  TESTIMONY  IX  HANDWRITING. 

SECTION. 

121.  Proof  of  Handwriting. 

122.  Testimony  of  Xon -Professional   Witnesses. 

123.  When  the  Opinions  of  Such  Witnesses  are  Inadmissible. 

124.  The  Basis  of  Expert  Testimony  Concerning  Handwriting. 

125.  Who  are  Experts  in  Handwriting. 

126.  Disqualification  of  Experts  Arising  from  Bias. 

127.  Upon  What  Subjects  Experts  in  Handwriting  can  Testify. 

128.  Genuineness  of  Writings  as  Determined  by  the  Ink. 

129.  The  Qualifications  of  Experts  in  Such  Cases. 

130.  Comparison  by  Expsrts  of  Writings  in  Juxtaposition. 

131.  Statutory  Provisions  Concerning  a  Comparison  of  Writings. 

132.  Proof  Under  the  Statutes. 

133.  Comparison  by  Experts  with  Writings  Admittedly  Genuine — In 

the  Absence  of  Statutory  Provision. 

134.  Comparison  by  Experts  of    Writings    in    Juxtaposition    Not 

Allowed  in  Some  States. 

135.  Comparison  in  Doubtful  CasQ< — The  Intermediate -Theory  of  the 

South  Carolina  Courts. 

136.  The  Right  of  Comparison   with  Writings  Proven  Genuine  fo 

the  Purpose — Denied. 

137.  The  Right  of  Comparison   with  Writings  Proven  Genuine  for 

the  Purpose — Affirmed. 

138.  Mode  of  Proof  W7hen   Comparison  is   Allowed  with   Writings 

Proven  Genuine  for  the  Purpose. 

139.  Expert    Should    Have    Before    Him     in    Court   the   Writings 

Compared. 


Xll  TABLE    OF    CONTENTS. 

140.  Comparison  with  Photographic  Copies. 

141.  Comparison  with  Letter-Press  Copies. 

142.  Comparison  with  Writings  Made  on  the  Trial. 

143.  Writings  Admissible  for  Comparison  in  Orthography. 

144.  Comparison  of  Writings— The  Use  on  Cross-Examination   of 

Fictitious  Specimens. 

145.  Detection  of  Counterfeit  Bank  Notes. 

146.  Regulation  of  Such  Evidence  by  Statutory  Provision. 

147.  The  Value  of  Expert  Testimony  as  to  Handwriting. 

CHAPTER  VIII. 

EXPERT    AND     OPINION    TESTIMONY     ON     QUESTIONS    OF 

VALUE. 

SECTION. 

148.  Proof  of  Value. 

149.  The  Opinions  of  Experts  on  the  Question  of  Value. 

150.  The  Opinions  of  Ordinary  Witnesses  on  the  Question  of  Value. 

151.  When  the  Opinions  of  Witnesses  on  the   Question  of  Value  are 

Inadmissible. 

152.  The  Competency  of  the  Witness  Must  First  be  Shown. 

153.  Competency  in  Particular  Cases. 

154.  Form  of  Question — Amount  of  Damages. 

155.  The  Value  of  Real  Estate. 

156.  Value  of  Personal  Property  Generally. 

157.  Value  of  Services  Generally. 

158.  Value  of  Legal  Services. 

159.  Value  of  Services  Rendered  by  Physicians  and  Nurses. 

160.  Value  of  Annuities. 

161.  Value  of  Foreign  Currency  and  Negotiable  Securities. 

CHAPTER  IX. 

THE     RELATION      OF      SCIENTIFIC      BOOKS      TO      EXPERT 

TESTIMONY. 
SECTION. 

162.  The  Relation  of  Scientific  Works  to  Expert  Testimony. 

163.  The  Admissibility  in  Evidence  of  Certain  Scientific  Works. 

164.  The  Inadmissibility  in  Evidence  of  Opinions  and   Statements 

Contained  in  Standard  Treatises  on  Inexact  Sciences — The 
Rule  in  England. 

165.  Their  Inadmissibility  in  Some  States  of  this  Country. 

166.  Their  Inadmissibility  in  Evidence  is  the  General  Rule  in  the 

United  States. 

167.  Their  Inadmissibility  in  California. 

168.  Their  Inadmissibility  in  Illinois,  Indiana  and  Kansas. 

169.  Their  Inadmissibility  in  Maine,  Maryland  and  Massachusetts. 


TABLE    OF    CONTENTS. 

170.  Their  Inadmissibility  iu  Michigan  and  Mississippi. 

>  71.  The  Doctrine  in  New  Hampshire  and  New  York. 

172.  Their  Inadmissibility  in  North  Carolina  and  Rhode  Island. 

173.  Their  Inadmissibility  in  Wisconsin. 

174.  The  Reasons  Why  Such  Books    Should  Not  be  Received  in 

Evidence. 

175.  Views  of  Writers  011  Medical  Jurisprudence  on  the  Question. 

176.  Their  Inadmissibility  for  Purposes  of  Contradiction. 

177.  The  Rights  of  the    Witness    to  Refer  to,    or  Cite  Standard 

Authorities. 

178.  Reading  from  Authorities  and  Asking  the  Witness  Whether  he 

Agrees  with  the  Extracts  Read. 
79.     Reading  from  Scientific  Books  in  Argument. 

180.  The  Rule  in  England  on  the  Subject. 

181 .  Cases  in  the  United  States  Denying  to  Counsel  the  Right  to  Read 

in  Argument  from  Scientific  Books. 

182.  Cases  Sometimes  Cited  as  Supporting  the  Rights  of  Counsel  so 

to  do. 

183.  Cases  Deciding  that  Counsel  may  Read  from  Scientific  Books  in 

Argument. 

184.  Reading  the  Testimony  of  Experts  as  Contained  in  the  Official 

Reports. 

CHAPTER  X. 

COMPENSATION  OF  EXPERTS. 

SECTION. 

185.  Statutory  Provisions  Concerning  the  Compensation  of  Experts. 

186.  Experts  Need  Not  Make  a  Preliminary  Examination  Unless 

Special  Compensation  is  Made. 

187.  Experts  Cannot  be  Required  to   Attend  Throughout  an  Entire 

Trial  for  the  Purpose  of  Listening  to  the  Testimony. 

188.  Whether  Experts  may  Decline  to  Express  an    Opinion  Until 

Special  Compensation  is  Made. 

189.  Opinions  of  Writers  on  Medical  Jurisprudence  as  to  Special 

Compensation. 

190.  American  Cases  Favoring  the  Right  to  Extra  Compensation. 

191.  American  Cases  Denying  the  Right  to  Extra  Compensation. 

192.  Extra  Compensation  Allowed  in  England. 

193.  Effect  of  Making  Extra  Compensation. 

194.  Special  Compensation   to  Expert  Employed  by  the  State  in 

Criminal  Cases. 

195.  Special  Compensation  to  Experts  Summoned  for  the  Defense 

Paid  Out  of  the  Public  Treasury. 

196.  Taxing  Expense  of  Services  of  an  Expert  as  Cost. 


XIV  TABLE    OF    CONTENTS. 

CHAPTER  XI. 

THE   WEIGHT  OF  EXPERT  TESTIMONY. 
SECTION. 

197.  The  Eight  of  a  Court  to  Express  an  Opinion  on  the  Facts. 

198.  The  Right  of  a  Court  to  Give  Cautionary  Instructions  in  Certain 

Cases. 

199.  Why  Expert  Testimony  Should  in  Some  Cases  be  Received  with 

Caution. 

200.  Cases  Holding  thai  Expert  Testimony  Should  be  Received  with 

Caution. 

201.  Cases  Holding  that  Expert  Testimony  Should  be  Considered  as 

Other  Testimony,  and  Tried  by  the  Same  Tests. 

202.  Cases  Holding  that    Expert  Testimony  is  Entitled  to    Little 

Weight. 

203.  Cases  Holding  that  Expert  Testimony  in  Matters   of  Medical 

Science  is  Entitled  to  Great  Weight. 

204.  Cases  Denying  that  the  Testimony  of  Physicians  as  to  Mental 

Condition  is  Entitled  to  Greater  Weight  than  that  of  Ordinary 
Witnesses. 

205.  The  Testimony  of  a  Family  Physician  as  to  Mental  Condition — 

Weight  Accorded  to. 

206.  The  Different  Theories  Discussed. 

207.  The  Right  and  Duty  of  the  Jury  as  to  Expert  Testimony. 


TABLE  OF  CASES  CITED. 


A. 

Abbey  v.  Lill,  5  Bing,  299,  p.  280. 
Abbott  v.  Dwinnell,  74  Mo.  514,  p.  122. 
Abbott  v.  Coleman,  22  Kan.  250,  p.  320. 
Abbott  v.  Coleman,  21  Kan.  250,  p.  333. 
Abell  v.  Munson,  18  Mich.  306,  p.  349. 
Adams  v.  Dale,  29  Ind.  273,  p.  364. 
Adams  v.  Field,  21  Vt.  256,  p.  330. 
Adams  v.  Peters,  2  Car.  &  Kir.  (61  E.  C. 

L.)  722,  p.  272. 

Adams  v.  Thornton,  82  Ala.  260,  p.  18. 
Alabama,  etc.  R.  R.  Co.  v.  Burkett,  42 

Ala.  83,  p.  369. 

Albert  v.  The  State,  66  Md.  325,  pp.  11, 14. 
Albright  v.  Corley,  40  Tex.  105,  p.  267. 
Allen  v.  Hunter,  6  McLean,  303,  pp.  4, 

146. 
Allen  v.  State,  3  Humph.  (Tenn.)  367,  p. 

344. 

Allen  T.  Railroad  Co., 57  Iowa,  626,  p.  33. 
Allen's  Appeal,  99  Pa.  St.  196,  p.  55. 
Allis  v.  Day,  14  Miss.  516,  p.  381. 
Alt  v.  California  Fig,  etc.  Co.,  19  Kev. 

118,  p.  352. 
Amadon  v.  Ingersoll,  34  Hun   (X.  Y.), 

134,  pp.  26,  58. 
American  Bible  Society  v.  Price,  115  Pll. 

623,  pp.  9, 158. 
American  Life  Ins.  Co.  v.  Rosenagle,  77 

Pa.  St.  507,  p.  216. 
Ames    v.  Cannon    River    Mfg.  Co.,  27 

Minn.  245,  p.  446. 
Amherst  Bank  v.  Root,  2  Met.  523,  p. 

289. 

Amstein  v.  Gardner,  134  Mass.  10,  p.  14. 
Anderson  v.  Anderson,  23  Tex.  639,  p. 

199. 
Anderson  v.  Folger,  11  La.  Ann.  269,  p. 

199. 

Andre  v.  Hardin,  32  Mich.  326,  p.  85. 
Anonymous,  37  Miss.  54,  p.  34. 


Anon.  35  Ala.  226,  p.  172. 

Anson  v.  Dwight,  18  Iowa,  244,  pp.  353, 

367. 
Anthony  v.  Stinson,  4  Kan.  211,  pp.  381, 

486. 
Anthony  v.  Smith,  4  Bos.  (N.  Y.),  503, 

pp.  91,  121. 
Antomarchi  v.  Russell,  63  Ala.  356,  p. 

272. 
Appleby  v.  Astor  Fire  Ins.  Co.,  54  X.  Y. 

253,  p.  249. 
Appleby  v.  Brock,  76  Mo.  314,  pp.  9,  158, 

161,  165. 
Ardesco  Oil  Co.  v.  Gilson,  63  Penn.  St. 

146,  p.  40. 
Armstrong  v.   Burrows,  6  Watts,  266. 

p.  302. 

Armstrong  v.  Lear,  8  Pet.  52,  p.  198. 
Armstrong  v.  Thurston,  11  Md.  148,  p. 

328. 
Ashcraft  v.  De  Armond,  44  Iowa,  229,  p. 

167. 
Ashland  v.  Marlborough,  99  Mass.  48, 

pp.  105, 189. 
Ashworth   v.    Kittridge,   12  Cush.   194, 

pp.  402,  413. 
Atchison,  etc.  R.  R.  Co.  v.  Miller,  39 

Kan.  419,  pp.  8,  12. 
A.,  T.,  etc.  R.  R.  Co.  v.  Frazier,  27  Kan. 

463,  pp.  116,  122. 
Atchison,  etc.  R.  R.  Co.  v.  Thul,  32  Kan. 

255,  pp,  458,  483. 
Atchison,  etc.  R.  R.  Co.  v.  Thul,  29  Kan. 

466, p.  183. 
Atchison,  etc.  R.R.  Co.  v.  United  States, 

15  Ct.  Of  Cl.  126,  pp.  22,  24,  355. 
Atlantic,  etc.  R.  R.  Co.  v.  Campbell,  4 

Ohio  St.  583,  pp.  367,  370. 
Atlantic  Ins.  Co.  v.  Manning,  3  Cal.  228, 

p.  288. 
Attorney- General  Petitioner,  104  Masc. 

537,  p.  441. 


XVI 


TABLE    OF    CASES    CITED. 


Atwater  v.  Clancy,  107  Maes.  369,  pp. 

271,280. 

Atwood  v.  Cornwall,  28  Mich.  339,  p.  345. 
Atwood  v.  Bearss,  45  Mich.  469,  p.  350. 
Augusta,  etc.  R.R.  Co.  v.  Dorsey,  68  Ga. 

228,  pp.  237,  238. 

Aumick  v.  Mitchell,  82  Pa.  St.  211,  p.  329. 
Aveson  v.  Kinnaird,  6  East,  188,  p.  114. 
Ayers  v.  Water  Commissioners,  29  N.  Y. 

Sup.  Ct.  297,  p.  64. 
Ayres  v.  Water  Commissioners,  29  N.Y. 

Sup.  Ct.  297,  p.  75. 


B. 


Babcock  v.  Babcock,  46  Mo.  243,  p.  199. 
Babcock  v.  Middlesex  Savings  Bank,  28 

Conn.  306,  p.  6. 
Babcock  v.  Raymond,  2  Hilton  (X.  Y.), 

61,  p.  361. 

Bacon  v.  Charlton,  7  Cush.  581,  p.  114. 
Bacon  v.  County  of  Wayne,  1  Mich.  461, 

p.  426. 
Bacon  v.  Williams,  13  Gray  (Mass.),  525, 

p.  300. 
Bailey  v.  McDowell,  2  Harrington(Del.), 

84,  p.  199. 

Bailey  v.  Pool,  13  Ired.  (N.  C.)  406,  p.  6. 
Bain  v.  Cushman,  60  Vt.  343,  p.  18. 
Bain  v.  Cushman,  66  Vt.  343,  p.  367. 
Baird  v.  Daly,  68  N.  Y.  548,  p.  230. 
Baker  v.  City  of  Madison,  62  Wis.  143,  p. 

14. 
Baker  Y.  Halnes,  6  Wharton  (Pa.),  291, 

p.  831. 
Baldwin  v.  St.  Louis,  etc.  R.  R.  Co.,  68 

Iowa,  37,  p.  269. 
Ball  v.  Hardesty,  38  Kan.  540,  pp.  253, 

258. 
Ball  v.  Consolidated  Franklin,  etc.  Co., 

32  N.  J.  L.  102,  p.  199. 
Ballaril  v.  Nebraska,  19  Neb.  609,  p.  66. 
Ballard  v.  New  York,  etc.  B.  R.  Co.,  126 

Pa.  St.  141,  p.  15. 
Baltimore  Elevator  Co.  v.  Neal,  65  Md. 

438, p.  235. 
Baltimore,  etc.  R.  R.  Co.  v.  Thompson, 

10  Md.  76,  pp.  64,  267. 
Baltimore,  etc.  Turnpike  Co.  v.  Cassell, 

66  Md.  419,  p.  61. 
Baltimore,  etc.  R.  R.  Co.  v.  Glenn,  28 

Md.  287,  p.  200. 
Baltimore,  etc.  R.  R.  Co.  v.  Leonhardt, 

66Md.77,  pp.  25,  45. 
Baltimore,  etc.  R.  R.  Co.  v.  Shipley,  30 

Md.  251,  p.  83. 

Bank  v.  Barry,  20  Md.  287,  p.  225. 
Bank  of  Commerce  v.  Bissell,  72  N.  Y  j 

615, p.  271. 


Banks  v.  State,  13  Texas  Ct.  of  App.  182, 

p.  128. 
Bannister  v.   Weatherford,  7  B.    Mo  n 

269,  p.  328. 
Barber  v.  Merriam,  11  Allen,  322,  pp.  105 

114,  150. 

Barker  v.  Comins,  136  Mass.  477,  p.  159. 
Barker  v.  Colernan,  35  Ala.  221,  p.  189. 
Barker  v.  Pope,  91  N.  C.  165,  p.  158. 
Barker  v.  Perry,  67  Iowa,  146,  p.  333. 
Barkman  v.  Hopkins,  11  Ark.  168,  p.  205. 
Barlow  v.  Lambert,  28  Ala.  704,  pp.  271, 

272. 
Baron  De  Bode's  Case,  8  Ad.  &  Ellis  (N. 

S.),208,  pp,  202,  203. 

Barnard  v.  Kellogg,  10  Wall.  383,  p.  272. 
Barnes  v.  Ingalls,  39Ala.  193,  pp  268,  271. 
Barnett  v.  Allen,  3  H.  &  N.  376,  p.  273. 
Barrick  v.  City  of  Detroit,  1  Mich.  N.  P. 

135,  p.  402. 

Barrows  v.  Downs,  9  R.  I.  446,  p.  222. 
Bass  Furnace  Co.  v.  Glasscock,  82  Ala. 

452,  p.  12. 

Bates  v.  State,  63  Ala.  30,  p.  398. 
Bates  v.  Sharon,  45  Vermont  474,  p.  5. 
Bathrick  v.  Detroit  Post  &  Tribune  Co., 

50  Mich.  643,  pp.  66, 154. 
Batten  v.  State,  80  Ind.  394,  pp.  118, 127, 

130. 
Bayly  v.  Chubb,  16  Gratt.  (Va.)  284,  p. 

198. 
Baxter  v.  Abbott,  7  Gray,  71,  pp.  103, 162 

167,  480. 

Beach  v.  O'Riley,  14  W.Va.  55,  p.  301. 
Beal  v.  Nichols,  2  Gray, 262,  p.  88. 
Beale  v.  Posey,  72  Ala.  323,  p.  10. 
Bearss  v.  Copley,  10  N.  Y.  95,  pp.  20,  43. 
Beason  v.  Kurz,  66  Wis.  448,  p.  274. 
Beaubien  v.  Cicotte,  13  Mich.  459,  op.  158, 

448,  479. 
Beauchamp  v.  Mudd,  Hardin  (Ky.),  163, 

p.  199. 
Beaumont  v.  Perkins,  1  Phillimore,  78, 

pp.  310,  331,631. 
Beck  with  v.  Sydebotham,  1  Camp.  117, 

p.  230. 
Bedell  v.  Long  Isl.  R.  R.  Co.,  44  N.  Y.  367, 

pp.  356,  362,  377. 
Bedford  v.  Flowers.  7  Humph.  (Tenn.) 

232, p.  271. 
Beecher  v.  Dennison,  13  Gray  (Mass.), 

354,  pp.  354,  365. 
Keekman  v.  Plainer,  15  Barb.   (N.  Y.) 

650. p.  381. 
Belair  v.  The  C.  &  N.  W.  R.  Co.,  43  Iowa, 

667,  p.  28. 

Bell  v.  Brewster,  44  Ohio  St.  690,  pp.  286, 
330. 

Bell  v.  McMaster,29  Hun  (N.  Y.),  272,  pp 
9, 158. 


TABLE    OF    CASES    CITED. 


XV11 


Beller  v.  Jones,  22  Ark.  92,'p.  168. 
Bellinger  v.  X.  T.  Cent.  R.  R.  Co.,  23  X. 

Y.  42,  p.  75. 
Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey, 

n  Ohio,  333,  pp.  75,  236. 
Bemls  v.  Central  Vermont  R.  R.  Co.,  58 

Vt.  636,  pp.  17,  55,  259. 
Benaway  v.  Conyne.3  Chand.  ( Wis.)  214, 

p.  90. 
Benedict  v.  City  of  Fon  du  Lac,  44  Wis. 

495,  pp.  6,  32,  253. 
Benedict  v.  Flanigan,  18  S.  C.  506,  pp.  311, 

327,  451. 

Bennett  v.  Bennett,  Deady,299,  p.  198. 
Bennett  v.  Fail,  26  Ala.  605,  pp.  118, 121, 

189. 

Bennett  v.  Matthews,  5  S.  C.  478,  p.  327. 
Bennett  v.  State,  57  Wis.  69,  pp.  63,  70. 
Bennison  v.  Walbank,  38  Minn.  313,  p. 

490. 

Benson  v.  McFaddon,  50  Ind.  431,  p.  10. 
Berckman  v.  Berckman,  16  X.  J.  Eq.  122, 

p.  6. 

Berg  v.  Spink,  24  Minn.  138,  p.  40. 
Berg  v.  Chicago,  etc.  R.  R.  Co.,  50  Wis. 

427, p.  392. 

Berliner  v.  Waterloo,  14  Wis.  378,  p.  197. 
Berryhill  v.  Kirchner,  %  Pa.  St.  489,  pp. 

324,  329. 

Berry  v.  Raddin,  11  Allen,  579,  p.  286. 
Berry  v.  State,  10  Ga.  511,  p.  158. 
Berthon  v.  Loughman,  2  Starkie,  258,  pp. 

247,  248. 

Bertie  v.  Beaumont,  2  Price,  307,  p.  286. 
Bestor  v.  Roberts,  58  Ala.  331,  pp.  318, 

328. 
Betts  v.  Clifford,  Warwick  Lent  Assizes, 

1858,  437. 
Beurmann  v.  Van  Buren,  44  Mich.  496, 

p.  446. 
Beverly  v.  Williams,  4  Dev.  &  Bat.  (X. 

C.)236,  p.  10. 
Beverly  v.  Walden,  20  Gratt.  (Va.)  147, 

p.  481. 
Bierbach  v.  Goodyear  Rubber  Co.,  54 

Wis.  208,  p.  492. 
Bierce  v.  Stocking,  11  Gray  (Mass.),  368, 

p.  145. 
Beisenthrall  v.  Williams,  1  Duval  (Ky.), 

330,  p.  209. 
Bills  v.  Ottumwa,  35  Iowa,  107,  pp.  15,20, 

•.W4. 
Birch  v.  Ridgway,  1  Fost.  &  Fin.  270,  p. 

312. 

Bird  v.  Millar,  1  McM.  125,.p.  327. 
Bird  v.  Commonwealth,  21  Gratt.  ( Va. ) 

800,  pp.  3,  99,  216. 

Bishop  v.  Spining,  38  Ind.  143,  pp.  64,  75. 
Bishop  v.  State,  30  Ala.  40,  pp.  818,  328. 
Bissell  v.  Ryan,  23  111.  570,  p.  272. 


Bissell  v.  Wert,  35  Ind.  54,  p.  367. 
i  Bitner  v.  Bitner,  65  Pa.  St.  347,  p.  103. 
BUby  v.  Montpelier    etc.  R.  R.  Co.,  4 

Vt.  123,  p.  239. 
Black  well  v.  State,  67  Ga.  76,  p.  179;  B.C., 

31Crim.  Law  Mag.,  394,  p.  179. 
Blackington  v.  Johnson,  126  Mass.  21, 

p.  88. 

Blake  v.  Griswold,  103  N.  Y.  429,  p.  371. 
Blake  v.  People,  73  N.  Y.  586,  p.  11. 
Blake  v.  Rourke,  74  Iowa,  519,  p.  165. 
Blanchard    v.  New  Jersey  Steamboat 

Co.,  3  X.  Y.  Sup.  Ct.  771,  p.  233. 
Bland  v.  S.  P.  R.  R.  Co.,  65  Cal.  626,  p.  189. 
Bliss  v.  Johnson,  76  Cal.  697,  p.  333. 
Bliss  v  Wilbraham.8  Allen  (Mass.),  564. 

p.  14. 

Blizzard  v.  Applegate,61  Ind.  371,  p.  381. 
Blodgett  Paper  Co.  v.  Farmer,  41  N.  H. 

401, p.  282. 

Blood  v.  Light,  31  Cal.  115,  p.  279. 
Blumenthal  v.  Rail,  24  Mo.  113,  p.  255. 
Board  of  Commissioners  v.  Chambers, 

75  Ind.  409,  p.  384. 
Board  of  Trustees  v.  Misenheimer,  78 

111.  22,  p.  290. 
Boardman  v.  Woodman,  47  N.  H.  120, 

pp.  39,  40,  78,  156. 

Bock  v.  Lauman,  24  Pa.  St.  435,  p.  226. 
Boehtlinck  v.  Schneider,  3  Esp.  58,  p.  202. 
Boggan  v.  Home,  97  X.  C.  268,  p.  350. 
Boggins  v.  State,  34  Ga.  278,  p.  328. 
Boggus  v.  State,  34  Ga.  275,  p.  319. 
Boies  v.  McAllister,  12  Me.  308,  pp.  155, 

192. 
Bomgardner  v.  Andrews,  55  Ind.  638, 

p.  66. 

Bonner  v.  Herrick,  99  Pa.  St.  220,  p.  446. 
Boor  v.  Lowrey,  103  Ind.  480,  p.  61. 
Booth  v.  Cleveland  Mill  Co.,  74  N.  Y.  27, 

p.  280. 
Borland  v.  Walwrath,  33  Iowa,  133,  p. 

460. 
Boston,  etc.  R.  R.  Co.  v.  Old  Colony,  etc. 

R.  R.  Co.,  3  Allen  (Mass.),  142,  p.  356. 
Bowdicht  v.  Soltyk,  99  Mass.  138,  p.  198. 
Bowen  v.  Bowen,  74  Ind.  470,  p.  378. 
Bowles  v.  Eddy,  33  Ark.  645,  p.  205. 
Bowman  v.  Plunkett,  2  McC.  518,  p.  327. 
Bowman  v.  Sanborn,  25  X.  H.  110,  p.  321. 
Bowman  v.  Smith,  1  Strobh.  (S.  C.)  246, 

p.  444. 
Bowman  v.  Woods,  1  Greene  (Iowa), 

441,  pp.  100, 148,  3%. 
Boyle  v.  State,  61  Wis.  440,  p.  119. 
Boyle  v.  State,  57  Wis.  472,  pp.  404,  409, 

414. 
Brabbitts  v.  Chicago,  etc.  R.  R.  Co.,  38 

Wis.  289,  p.  237.  (.B) 


XV111 


TABLE    OF    CASES    CITED. 


Brachman  &  Hall,  1  Disney,  539,  p.  287. 
Brackett  v.  Norton,  4  Conn.  517,  p.  199. 
Bradford  v.  Cooper,  1  La.  Ann.  325,  p. 

197. 
Bragg  v.   City  of  Moberly,  17  Mo.  App. 

221,  p.  189. 
Bragg  v.  Colwell,  19  Ohio,  412,  pp.  330, 

331. 
Brainard  v.  Boston,  etc.  K.  R.  Co.,  12 

Gray  (Mass.),  407,  p.  373. 
Brant  v.  City  of  Lyons,  60  Iowa,  172,  pp. 

17, 122. 

Brantly  v.  Swift,  24  Ala.  390,  p.  254. 
Brehtu   v.  Great  Western  R.  R.  Co.,  34 

Barb.  256,  p.  486. 
Brewer  v.  Freeman,  10  Moore,  P.  C.  306, 

p.  2-24. 

Brewer  v.  Luth,  28  Kan.  581,  p.  214. 
Bridge  v.  City  of  Oshkosh,  71  Wis.  363, 

pp.  11, 191. 

Bridger  v.  R.  R.  Co.,  25  S.  C.  24,  p.  241. 
Bridges  v.  McClendon,  56  Ala.  327,  p. 

256. 

Briggs  v.  Briggs,  20  Mich.  34,  p.  108. 
Briggs  v.  Morgan,  3  Phillimore,  325,  p. 

172. 
Brimhall  v.  Van  Campen,  8  Minn.  13,  p. 

199. 
Brink  v.  Merchants',  etc.  Ins.  Co.,  49  Vt. 

442, p.  249. 
Bristol  County  Saving  Bank  v.  Keavy, 

128  Mass.  208,  pp.  371,  372. 
Bristow  v.  Sequeville,  5  Excheq.  272,  p. 

221. 
Brown  v.  Brown,  1  Haggard,  523,  pp.  172, 

174. 

Brown  v.  Brown,  10  Met.  573,  p.  275. 
Brown  v.  Cape  Girardeau,  etc.  Plank 

Road  Co.,  89  Mo.  152,  p.  14. 
Brown  v.  Chenoworth,  51  Tex.  469,  p.  84. 
Brown  v.  Doubleday,  61  Vt.  523,  p.  284. 
Brown  v.  Foster,  113  Mass.  136,  p.  271. 
Brown  v.  Huffard,  69  Mo.  305,  pp.  75, 381. 
Brown  v.  Jackson,  2  Wash.  C.  C.  24,  p. 

27-2. 
Brown  v.  Kennedy,  33  L.  J.  Ch.  71;  33 

Beav.  133;  4  D.  J.  &.  8.  217,  p.  380. 
Brown  v.  Leach,  107  Mass.  364,  p.  280. 
Brown  v.  Moore,  32  Mich.  254,  p.  364. 
Brown  v.  Providence  &  Springfield  R. 

R.  Co.,  12  R.  I.  238,  pp.  351,  370,  374. 
Brownell  v.  People,  38  Mich.  732,  p  10. 
Browning   v.  Long  Island  K.  R.  Co.,  2 

Daly  (N.  Y.),  117,  p.  377. 
Brobston  v.  Cahlll,  64  111.  359,  pp.  325, 

828. 

Brooke  v.  Brooke,  60  Md.  529,  p.  333. 
Brooke  v.  Townshend,  7  Gill  (Md.),  24, 

p.  158. 


Brookes  v.  Tichborne,  5  Exch.  929,  p. 

341. 

Brough  v.  Perkins,  6  Mod.  81,  p.  393. 
Broquet  v.  Trlpp,  36  Kan.  700,  pp.  39,  56. 
Bruch  v.  Carter,  32  N.  J.  Law,  554  p.  446. 
Bruyn  v.  Russell,  52  Hun,  17,  p.  322. 
Bryan  v.  Town  of  Branford,  50  N.  Y.  56, 

p  253. 

Bryant  v.  Kelton,  1  Tex.  434,  p.  205. 
Brunswick,  etc.  R.  R.  Co.  v.  McLaren, 

47  Ga.  546,  p.  369. 

Buckley  v.  Rice,  1  Plowden,  125,  p.  5. 
Buel  v.  N.  Y.  Cent.  R.  R.  Co.,  31  N.  Y. 

314, p.  122. 
Buford  v.  McGetchie,  60  Iowa,  298,  p. 

350. 
Buffum  v.  Harris,  5  R.  I.  250,  pp.  3,  252, 

264,  279. 
Buffum  v.  N.  Y.  Central,  etc.  R.  R.,  4  E. 

I.  221,  p.  351,  372. 

Bullard  v.  Hascall,  25  Mich.  132,  p.  83. 
Burdick  v.  Hunt,  43  Ind.  381,  pp.  299,319. 
Burger  v.  Northern  Pacific  R.  R.  Co.,  22 

Minn.  343,  pp.  351,  357. 
Burlington,  etc.  R.  R.  Co.  v.  Beebe,  14 

Neb.  463,  pp.  367,  370. 
Burlington  Ins.  Co.  v.  Leod,  40  Kan.  54, 

p.  276. 
Burlington,  etc.  R.  R.  Co.  v.  Schluntz, 

14  Neb.  421,  P-  370. 
Burnham  v.  Boston    Marine  Ins.  Co., 

139  Mass.  399,  p.  274. 
Burnbatn  v.  Mitchell,  34  Wis.  Ill,  p.  158. 
Burns  v.  Barenfleld,  84  Ind.  43   (1882), 

pp.  71,  82. 
Burns  v.  Welch,  8  Yerg.  (Tenn.)  117,  p. 

260. 
Burton  v.  Scott,  3  Rand.   (Va.)  399,  p. 

474. 

Burton  v.  Wilkes,  66  N.  C.  604,  p.  322. 
Burwell  v.  Sneed,  104  N.  C.  118,  p.  256. 
Bush  v.  Jackson,  24  Ala.  273,  p.  118. 
Butcher  v.  Bank,  2  Kan.  70,  p.  200. 
Buxton  v.  Somerset  Potters  Works,  121 

Mass.  446,  pp.  16,  61  63. 


C. 


Cabot  Bank  v.  Russell,  4  Gray,  167,  p. 

320. 

Cahill  v.  Palmer,  45  N.  Y.  478,  p.  286. 
Cahoon  v.  Ring,  1  Clifford,  592,  p.  270. 
Caldwellv.  Murphy,  11  N.  Y.  416,  p.  115. 
Calkins  v.  State,  14  Ohio  St.  222,  pp.  294, 

331,  332. 

Callahan  v.  Stanley,  57  Cal.  479,  p.  274. 
Campbell  v.  Russell,  9  Iowa,  337,  p.  274. 
Campbell  v.  Russell,  139  Mass.  278,  pp. 

27,  57. 


TABLE    OF    CASES    CITED. 


XIX 


Campbell  v.  Richards,  5  Barn.  &  Ad.  840, 

pp.  20,  247. 
Campbell  v.  State,  10  Tex.  Ct.  of  App. 

560,  pp.  153. 
Campion  v,  Kille,  1  McCarter  (N.  J.), 

229,  p.  199. 
Canady  v.  Lynch,  27  Minn.  435,  pp.  11, 

189. 
Cannell  v.  Phoenix  Ins.  Co.,  59  Me.  582, 

p.  249. 
Cannon  v.  Iowa  City,  34  Iowa,  203,  p. 

369. 
Cantling  v.  Hannibal,  etc.  R.  R.,  54  Mo. 

385,  pp.  351,353,357. 
Carey  v.  Cincinnati,  etc.  R.  R.  Co.,  5 

Iowa,  357,  p.  199. 
Carpenter  v.  Blake,  2  Lans.  (N.  Y.)  206' 

pp.  59,  66,  75. 

Carpenter  v.  Culvert,  83  111.  62,  p.  477. 
Carpenter  v.  Central  Park,  etc.  R.  R. 

Co.,  11  Abb.  Pr.  (N.  S.)  416,  p.  240. 
Carpenter  v.  Corinth,  58  Vt.  214,  p.  39 

57. 

Carpenter  v.  Dexter,  8  Wall.  513,  p.  200 
Carpenter  v.    Eastern    Transportation 

Co.,  71  X.Y.  574,  pp.  63,  230. 
Carpenter  v.  Hatch,  64  X.  H.573,  p.  157. 
Carpenter  v.  Wait,  11  Cush.  (Mass.)  257, 

p.  267. 
Carr  v.  State,  24  Tex.  Ct.  of  App.  562,  p. 

171. 

Carroll  v.  State,  23  Ala.  28,  p.  11. 
Carter  v.  Baker.  1  Sawyer,  512,  p.  457. 
Carter  v.  Boehm,  2  Burr,  19C5,  p.  247. 
Carter  v.  Carter,  36  Mich.  207,  p.  380. 
Carter  v.  State,  2  Ind.  619,  p.  400. 
Carthage    Turnpike     Co.  v.    Andrews, 

102  Ind.  138,  pp.  9, 11,  189. 
Cartwright  v.  Cartwright,  26  W.  R.  684,  \ 

p.  222. 
Case  v.  Perew,  46  Hun  (X.  Y.),  57,  pp.  28, 

58,  393. 
Castner  v.  Sliker,  33  X.  J.  L.  95,  507,  pp. 

10, 101. 
Cavandish  v.  Troy,  41  Vermont,  108,  pp. 

8,  2.i. 
Central  R.  Co.  v.  Kelly,  58  Ga.  107,  pp.  6, 

18,  367. 
Central  R.  R.  Co.  v.   Linn,  73  Ga.  705,  p. 

367. 
Central  R.  R.  Co.  v.  Mitchell,  63  Ga.  173, 

pp.  47,  25'.'. 
Central  R.  R.  Co.  v.  Mitchell,  1  Am.  & 

Eng.  R.  R.  Cases,  145,  pp.  47,  252. 
Central  Pacific  R.  R.  Co.  v.  Pearson,  35 

Cal.  247,  pp.  81,  350,  375. 
Central    Branch,     etc.    R.     R.   Co.  v. 

Nichols,  24  Kan.  242,  p.  381. 
Central  R.  R.  Co.  v.  Richards,  62  Ga.  306, 

p.  392. 


Central  R.  R.  Co.  v.  Wolf,  74  Ga.  664,  p. 

352. 
Chamberlain    v.    Maitland,   5  B.   Mon. 

(Ky.)  448,  p,  209. 
Chambovet  v.  Cagnet,  3  J.  &  S.  (N.  Y.) 

474,  p.  356. 

Chamness  v.  Chamness,  53  Ind.  304,  p. 

353. 
Champ  v.  Commonwealth,  2  Met.  (Ky.) 

18,  p.  33. 
Chance  v.  Indianapolis,  etc.  R.  B.  Co., 

32  Ind.  473.  p.  319. 
Chandler  v.  Barrett,  21  La.  Ann.  58,  pp, 

458,  486. 
Chandler  v.  Grieves,    2  H.  Bl.  606n.,   p, 

197. 
Chandler  v.  Thompson,  30  Fed.  Rep.  38, 

pp.  39,  261. 
Chandler  v.  Jamaica  Pond  Aqueduct, 

125  Mass.  544,  pp.  40,  252. 
Chandler  v.  LeBarron,  45  Me.  534,  p.  340. 
Chanoine  v.  Fowler,  3  Wend.  173,  p.  209. 
Charlotte  v.  Chouteau,  33  Mo.  194,  pp. 

226. 

Chase  v.  Lincoln,  31  Mass.  237,  p.  156. 
Chase  v.  Winans,   59  Md.  475,  pp.    168. 

160. 
Chaurand  Angerstein,  Peake  N.  P.  C.  61, 

pp.  20,  247. 
Cheatham  v.  Hatcher,  30  Gratt.   (Va.) 

56,  p.  474. 

Cheek  v.  State,  38  Ala.  227,  p.  266. 
Cheeney  v.  Dunlap,  20  Xeb.  265,  pp.  302, 

307. 
Cherokee  v.  S.  C.,  etc.  Co.,  52  Iowa,  279, 

p.  349. 
Chester  v.  State,  23  Tex.  Ct.  of  App.  583, 

p.  296. 
Chicago,  etc.  R.  R.  Co.  v.  Blake,  116  111. 

163, p.  371. 
Chicago,  etc.  R.  R.  Co.  v.  George,  19  111. 

510,  pp.  11, 189, 190, 191. 
Chicago  v.  Greer,  9  Wall.  726,  p.  260. 
Chicago,  etc.  R.  R.   Co.  v.  Martin,  112 

111.  16,  p.  123. 
Chicago  &  Alton  R.  R.  Co.  v.  Springfield 

&  Xorth western  R.  R.  Co.,  67  111.  142, 

pp.  39, 61. 
Chicago,  etc.  R.  R.  Co.  v.  Shannon,  43 

111.  339,  p.  237. 
Chicago  v.  McDorough,  112  111.  85,  p. 

370. 

Childs  v.  State,  55  Ala.  28,  p.  12. 
Choice  v.  State,  31  Ga.  424,  pp.  157, 160, 

475,  486. 

Chcrley  v.  Bolcot,  4  Term  R.  317,  p.  383. 
Chouteau  v.  Pierre,  9  Mo.  3,  p.  197. 
Church  v.  Hubbart,  2  Cranch,  187,  p.  205. 
Church  v.  Milwaukee,  31  Wis.  513,  p.  333. 
Cilley  v.  Cilley,  34  Me.  162,  p.  156. 


XX 


TABLE    OF    CASES    CITED. 


Cincinnati,  etc.  Mut.  Benefit  Life  Ins. 

Co.  v.  May,  20  Ohio,  211,  pp.  61,  224. 
Cincinnati,  etc.  Mut.  Ins.  Co.  v.  May,  20 

Ohio,  211,  p.  75. 
Cincinnati,  etc.  R.  R.  Co.  v.  Smith,  22 

Ohio  St.  246,  p.  238. 
Citizens'    Gaslight      Heating     Co.    v. 

O'Brien,  15  Brad.  (111.)  400,  pp.  39,  47, 

53,  55. 
Citizens  Gaslight  Co.  v.  O'Brien,  118  III. 

174,  p.  53. 
City  of  Aurora  v.  Hillman,  90  111.  66,  p. 

10. 
City  of  Bloomington  v.  Shrock,  110  111. 

219,  pp.  400,  408,  410. 
City    of  Brownsville,    v.     Cavazos,    2 

AVoods,  293,  p.  197. 
City  of  Chicago  v.  McGiven,  78  111.  347, 

pp.  20,  21,  25,  31. 
City  of  Decatur  v.  Fisher,  63  111.  241, 

p.  64. 
City  of  Euf  aula  v.  Simmons,  86  Ala.  515, 

p.  187. 
City  of  Goshen  v.  England,  119  Ind.  368, 

pp.  118, 122. 
City  of  Indianapolis  v.  Scott,  72  Ind. 

196,  p.  251. 
City  of  Kansas  v.  Butterfleld,  89  Mo.  648, 

p.  487. 
City  of  Fort  Wayne  v.  Combs,  107  Ind. 

75,  p.  46,  54. 
City  of  Parsons  v.  Lindsay,  26  Kan.  426, 

pp.  8,  20, 32. 
CityofRipon,  v.  Bittel,  30,Wls.  614,  p. 

408. 
City  of  St.  Louis  v.  Ranken,  95  Mo.  189, 

p.  487. 
City  of  Topeka  v.  Sherwood,  39  Kan. 

690,  p.  14. 
City  of  Washington,  92  U.  S.  31,  pp.233, 

271. 

Claggett  v.  Easterday,42  Md.  617,  p.  257. 
Clague  v.  Hodgson,  16  Minn.  329,  p.  267. 
Clapp  v.  Fullerton,  34  N.  Y.  190,  p.  159. 
Clark  v.  Baird,  9  N.  Y.  183,  p.  373. 
Clark  v.  Bruce,  19  Hun  (N.  Y.),274,  p.  20. 
Clark  v.  Bruce,  19  N.  Y.  Sup.  Ct.    (12 

Hun)  271,  p.  307. 
Chirk  v.  Detroit  Locomotive  Works,  32 

Mich.  348,  pp.  61,  230,  234. 
Clark  v.  Fisher,  1  Paige  Ch.  171,  p.  K. 
Clark  v.  Periam,  2  Atk.  337,  p.  169. 
Clark  v.  Rockland  Water  Power  Co.,  52 

Mo.  68,  p,  21. 
Clark  v,  Rhodes,  2  Heisk.  2C6,  p.  pp.  324, 

329. 

Clark  v.  State,  12  Ohio,  483,  pp.  158, 452. 
Clark  v.  Willett,  35  Cal.  534,  pp.  81,  279. 
Clark  v.  Wyatt,  15  Ind.  271,  p.  310. 


Clary  v.  Clary,  2  Ired.  (X.  C.)  78,  p.  158. 
Clason  v.  City  of  Milwaukee,   30  Wls. 

316,  p.  253. 
Claxton's  Adm'r  v.  Lexington,  etc.  R. 

R.  Co.,  13  Bush  (Ky.),  636,  p.  278. 
Clegg  v.  Fields,  7  Jones  (\.  C.)  Law,  37, 

p.  254. 

Clegg  v.  Levy,  3  Camp.  155,  p.  202. 
Claxton's  Admr.  v.  Lexington,  etc.  R. 

R.  Co.,  13  Bush  (Ky.),  636,  p.  278. 
Clements  v.  Burlington,  etc.  R.  R.  Co., 

74  Iowa,  442,  p.  350. 
Clement  v.  British  Am.  Assur.  Co.,  141 

Mass.  298,  p.  251. 
Cleveland,  etc.  R.  R.  Co.  v.  Ball,  5  Ohio 

St.  668,  pp.  20,  367,  370. 
Cleveland,  etc.  R.  R.  Co.  v.  Newell,  104 

Ind.  264,  pp.  116, 117. 
Cleveland,  etc.  R.  R.  Co.  v.  Perkins,  17 

Mich.  296,  p.  378. 
Clifford  v.  Richardson,  18  Vt.  620,  627,  p. 

25. 

Clussman  v.  Merkel,  3  Bosw.  402,  p.  227. 
Cobb  v.  City  of  Boston,  109  Mass.  438, 

pp.  3M,  360. 
Cobb  v.  The  Griffith,  etc.  Co.  S7  Mo.  94, 

p.  226. 
Cobbett   v.  Kllmlnster,  4   Fos.  &  Fin. 

490,  p.  340. 

Cocks  v.  Purday,  2  C.  &  K.  269,  p.  204. 
Coffee  v.  Neely,  2  Helsk.311,  p.  200. 
Cohen  v.  Platt,  69  X.  Y.  348,  p.  349. 
Cohen  v.  Teller,  93  Pa.  St.  123,  pp.  331, 

338. 

Colbertson,  etc.  Provision  Co.  v.  Chi- 
cago, 111  111.  651,  p.  349. 
Cole  v.  Clark,  3  Wis.  323,  p.  20. 
Collender  v.  Dinsmore,  55  X.  Y.  200,  pp. 

271,  274. 
Collier  v.  Simpson,  24  Eng.  C.  L.  219,  pp. 

46,  394. 

Collins  v.  Crocker,  15  Brad.  (111.)  107,  p. 

304. 
Collins  v.  Godefroy,  1  Barn.  &  Adol.  MO, 

p.  439. 

Collins  v.  Stephenson,  8  Gray,  438,  p.  89. 
Colt  v.  People,  1  Parker  Cr.  Gas.  611,  pp. 

127, 128. 
Commonwealth  v.  Allen,     128  Mass.  46, 

p,  340. 
Commonwealth  v.  Brayman,  136  Mass. 

438,  pp.  11, 159. 
Commonwealth  v.  Brown,  121  Mass.  69, 

pp.  154,  402. 
Commonwealth  v.  Brown,  14  Gray,  419, 

p.  155. 
Commonwealth  v.Carey, 2  Pick.  (Mass.) 

47,  p.  344. 

Commonwealth  v.Cbild.lO  Pick. (Mass.) 
252,  p.  445. 


TABLE    OF    CASES    CITED. 


XXI 


Commonwealth  v.Choate.  105  Mass,  461, 

p.  279. 
Commonwealth  v.  Coe,  115  Mass.  481, 

pp.  3-20,  331. 
Commonwealth  v.  Coe,  115  Mass.  504,  p. 

Commonwealth  v.  Dorsey,    103  Mass. 

412,  p.  146. 
Commonwealth    v.  Eastman,    1  Cush. 

189,  p.  338. 
Commonwealth  v.  Fairbanks,  2  Allen 

(Mass.),  511,  p.  156. 
Commonwealth  v.  Graves,  97  Mass.  115, 

p.  447. 
Commonwealth    v.    Higgins,    5    Eulp. 

(Pa.)  269,  p.  437. 
Commonwealth  v.  Hobbs,  140  Mass.  443, 

p.  135. 
Commonwealth  v.  Kendrick,  147  Mass. 

444, p.  135. 
Commonwealth  v.  Lenox,  3  Brewster, 

•249,  p.  131. 
Commonwealth  v.  Marzynski,  149  Mass. 

68,  72,  pp.  18,  402. 
Commonwealth     v.    Mullins,    2    Allen 

(Mass.),  296,  p.  77. 
Commonwealth  v.  O'Brien,    134  Mass., 

198,  p.  10. 
Commonwealth  v.  People,  105  Mass.  163, 

p.  89. 
Commonwealth  v.  Piper,  120  Mass.  185, 

p.  127. 
Commonwealth  v.  Pomeroy,  117   Mass. 

148, p.  169. 
Commonwealth  v.  Pope,  103  Mass.  440, 

p.  10. 
Commonwealth  v.  Rich,  14  Gray  (Mass.), 

335,  pp.  102,  103,  163. 
Commonwealth  v.  Rogers,  7  Met.  (Mass) 

500, p.  161. 
Commonwealth  v.  Sturtivant,  117  Mass. 

122,  pp.  8,  10,  12,  122, 137,  144,  402,  408, 

409. 
Commonwealth  v.  Twitchell,  1  Brewster 

(Pa.),  562,  p.  143. 
Commonwealth   v.    Webster,  5   Cush. 

(Mass.)  295,  pp.  84,  299,  300. 
Commonwealth  v.  Wilson,  1  Gray,  337, 

pp.  156,  402. 
Commonwealth  v.  Williams,  105  Mass. 

62,  p.  10. 
Comparet  v.  Jernegan,  5  Blackf.  (Ind.) 

375, p.  205. 

Comstock  v.  Smith,  20  Mich.  338,  p.  388. 
Concha   v.   Murrleta,  L.  R.  4  Ch.  Div. 

543,  p.  225. 
Concord  R.  R.  Co.  v.  Greeley,  23   N.  H. 

237,  pp.  25,  350. 
Condit  v.  Black  well,    19  X.  J.  Eq.  193,  p. 

210. 


Conely   v.    McDonald,   40  Mich.  150,  p. 

444. 
Conhocton  Stone  Road  Co.  v.  Buffalo' 

X.  Y.  &  Erie  R.  R.  Co.,  10  N.  Y.  523,  p. 

76. 
Conn.  Mut.  Life  Ins.  Co.  v.  Lathrop,  111 

U.  8.  612,  pp.  11, 157. 

Connelly  v.  Edgerton,  22  Neb.  82,  p.  361- 
Conrad  v.  Griffey,  16  How.   (U.  S.)  38,  p. 

89. 
Consequa   v.    Willings,  1  Pet.  C.  C.  225 1 

p.  226. 
Consolidated  Real  Estate,  etc.Co.  v.  Ca- 

show,  41  Md.  59,  pp.  212,  214. 
Continental  Ins.  Co.  v.  Delpeuch,82  Pa. 

St.  225,  pp.  6,  89. 
Continental  Ins.  Co.  v.  Horton,  28  Mich- 

173,  p.  353. 

Conway  v.  The  State,  118  Ind.  490,  p.  66. 
Cook  v.  Castner,9  Cush.  266,  p.  232. 
Cook  v.  State,  24  N.  J.  Law,  843,  pp.  25, 

30, 153. 

Cooke  v.  England,  27  Md.  14,  p.  258. 
Cooper  v.  Bockett,  4  Moore  P.  C.  43,  p. 

300. 
Cooper  v.  Central  R.  R.  of  Iowa,  44  Iowa, 

140, p.  236. 

Cooper  v.  Randall,  59  111.  317,  p.  353. 
Cooper  v.  State,  53  Miss.  393,  pp.  353,  365. 
Cooper  v.  State,  23  Texas,  336,  pp.  33, 118, 

121,  122. 

Corbett  v.  Underwood,  83  111.  324,  p.  271. 
Corby  v.  Weddle,  57  Mo.  422,  p.  328. 
Corlis  v.  Little,  13  N.  J.  Law,  232, p.  6. 
Cornelison   v.  Commonwealth,  84  Ky. 

593,  p.  116. 

Corning  v.  Burden,  12  How.  252,  p.  270. 
Cornish  v.  Farm  Buildings  Fire  Ins.Co., 

74  N.  Y.  295,  pp.  247,  249. 
Corsi  v.  Maretzek,  4  E.  D.  Smith  (X.Y.), 

1,  p.  100. 
Costello  v.  Crowell,  133  Mass.  352,  pp. 

329,  331. 
Costello  v.  Crowell,  139  Mass.  590,  pp. 

320,  331. 
Cottrill  v.  Myrick,  12  Me.  222,  231,  pp.  20, 

281. 
Couch  v.  Charlotte,  etc.  R.  R.  Co.,  22  S. 

C.  657,  p.  13. 
Coughlin  v.  Poulson,  2  McArthur,  308,  p. 

167. 
County  of  Cook  v.  Harms,  10  Bradw. 

(111.)  24,  p.  378. 

Covey  v.  Campbell,  52  Ind.  158,  p.  381. 
Cowan  v.  Beall,  1  McArthur,  270,  p.  461 
Cowles  v.  Merchants,  140  Mass.  377,   p. 

159. 

Cowley  v.  People,  83  N.  Y.  464,  p.  65. 
Coyle  v.  Commonwealth,  104  Pa.  St.  117, 

pp.  20,  75. 


XX 11 


TABLE    OF    CASES    CITED. 


Craig  v.  Gerrish,  58  N.  H.  513,  pp.  126, 

191. 
Craig  v.  Noblesville,  etc.  R.  R.  Co.,  98 

lud.  109,  p.  71. 

Crane  v.  Crane,  33  Vt.  15,  p.  158. 
Crane  v.  Xorthfield,  33  Vt.  126,  p.  14. 
Crawford  v.  State,  2  Ind.  132,  p.  345. 
Crawford  v.  Wolf,  29  Iowa,  568,  p.  351. 
Crawford  v.  Williamson, 48  Iowa,  247,  p. 

397. 
Cresswell  v.  Jackson,  2  Fost.  &  Fin.  24, 

p.  312. 

Crist  v.  State,  21  Ala.  137,  p.  318. 
Cromwell  v  Western  Reserve  Bank,  3 

Ohio  St.  406,  p.  20. 
Cross  v.  Lake  Shore,  etc.  Railway  Co. ,69 

Mich.  363,  p.  14. 

Crouse  v.  Holman,  19  Ind.  30  p.  373. 
Crutchfleld  v.  Richmond,  etc.  R.  R.  Co. 

76  X.  C.  320,  p.  446. 

Crowe  Adm'r  v.  Peters,  63  Mo.  429,  p,  158. 
Crowellv.  Kiik,  3  Dev.  (X.  C.)  358,  p.  81. 
Crowley  v.  People,  83  N.  Y.  464,  p.  187. 
Culver  v.  Dwight,  6  Gray  (Mas?.) ,  444,  p. 

10. 

(Jammings  v.  Taylor,  24  Minn.  429,  p.  89. 
Cummings  v.  State,  58  Ala.  387,  p.  6. 
Cuneo  v.  Bessoni,  63  Ind.  524,  p.  457. 
Curry  v.  State,  5  Neb.  412,  p.  130. 
Curtis  v.  Martin,  2  N.  J.  Law,  290,  p.  199, 
Curtis  v.  Gano,  26  X.  Y.  426,  pp.  76,  259. 
Cushman  v.  U.  S.  Life  Ins.  Co.,  70  N.  Y. 

72,  80,  p.  68. 

D. 

Daily  v.  Fountain,  35  Ala.  26,  p.  256. 
Daily  v.  Multnomah  County,  14  Oreg. 

20, p.  427.      . 

Daines  v.  Hartley,  3  Exch.  200,  p.  19. 
Dalrymple  v.  Dalrymple,  2  Hagg.  54, 

p.  202. 
Daly  v.  N.  W.  Klmball  Co., 67  Iowa,  132, 

p.  356. 
Dalzell  v.  City  of  Davenport,  12  Iowa, 

437,  p.  353. 

Damess  v.  Hale,  1  Otto,  13,  p.  198. 
Dana  v.  Fiedler,  12  X.  Y.  40,  p.  276. 
Danforth  v.  Reynolds,  1  Vt.  265,  p.  205. 
Daniels  v.  Aldrich,  42  Mich.  58,  p.  66. 
Daniels  v.  Hudson  River  Fire  Ins.  Co., 

12  Cush.   (Mass.)   416,  pp.    247,    249, 

274. 

Daniels  v.  Mosher,  2  Mich.  183,  p.  6. 
Darbv  v.  Ouseley,  1  H.  &  X.  l,  p.  445. 
Darrigan  v.  Xew  York,  etc.  R.  R.  Co. ,52 

Conn.  285,  p.  117. 

Dauphin  v.  U.  S.,  6  Ct.  of  Cl.  269,  p.  222. 
Davenport  v.  Ogg,  15  Kan.  363,  p.  90. 
Davidson  v.  St.  Paul,  etc.  R.  R.  Co.,  34 

Minn.  51.  p.  237. 


Davidson  v.  Stanley,  2  M.  &  G.  721,  p. 

445. 
Davis  v.  Charles  River  Branch  R.  R.  Co., 

11  Cush.  506,  p.  350. 
Davis  v.  Marlborough,  2  Swanson,  113, 

p.  387. 

Davis  v.  Mason,  4  Pick.  156,  p.  254. 
Davis  v.  Rogers,  14  Ind.  424,  p.  199. 
Davis  v.  State,  38  Md.  15,  pp.  20,  59,  127, 

401,  408. 
Davis  v.  State,  35  Ind.  496,  pp.  39, 66,  72, 

80,  86, 103,  445. 

Dawson  v.  Callaway,  18  Ga.  573,  p.  6. 
j  Day  v.  State,  63  Ga.  667,  p.  179. 
DeArmand  v.  Xeasmith,  32  Mich.  23J,  p. 

392. 
DeBerry  v.  C.  C.  R.  R.  Co.,  100  X.  C.  310, 

315  (1888),  p.  26. 
DeDost  Aly  Khan,  6  Prob.  Div.  (L.  R.) 

6,  p.  215,  220. 
DeLa  Motte's  Case,  21  How.  St.  Tr.  810, 

p.  286. 

De  Pue  v.  Place,  7  Pa.  St.  429,  p.  331. 
De  Phul  v.  State,  44  Ala.  39,  pp.  85,  99. 
Dean  v.  Aveling,  1  Robertson,  279,  p.  173. 
Dean  v.  McLean.  48  Vt.  412,  p.  269. 
Del.,  etc.  Steam  Tow-boat  Co.  v.  Starrs, 

69  Pa.  St.  36,  pp.  39,  40,  56,  230, 445. 
Delano  v.  Jopling,  1  Litt.   (Ky.)  417,  p. 

197. 
Demeritt  v.  Randall,  116  Mass.  331,  p. 

299. 

Dennis  v.  Weeks,  51  Ga.  214,  p.  157. 
Denton  v.  State,  1  Swan   (31  Tenn.),  279, 

pp.  114, 115. 

;  Denton  v.  Smith,  61  Mich.  431,  p  349. 
I  Detroit,  etc.  R.  R.  Co.  v.  Van  Steinberg, 

17  Mich.  99,  p.  240,  244. 
Detweiler  v.  Groff,  10  Pa.  St.  376,  p.  257. 
Devenbagh  v.  Devenbagh,  5  Paige,  554, 

pp.  172, 173, 174, 176. 
De  Witt  v.  Bailey,  17  X.  Y.  344,  pp.  10, 

158. 

De  Witt  v.  Bailey,  9  X.  Y.  371,  p.  156. 
Dexter  v.  Hall,  15  Wall.  9,  pp.  61,  64. 
Dickenson  v.  Barber,  9  Mass.  218,  p.  84. 
Dlckenson  v.  Fitchburg,  13  Gray,  546, 

pp.  3,  5,  84,  350,  351. 
Dickinson  v.  Gay,  7  Allen   (Mass.),  29, 

p. 271. 
Dickie  v.  Van  Bleck,  5  Redf.  (X.  Y.)  284, 

p.  67. 

Dieken  v.  Johnson,  7  Ga.  484,  p.  108. 
Dietz  v.  Xat.  Bank,  69  Mich.  222,  pp.  320, 

328,  343. 
Dlllard  v.  State,  58  Miss.  368,  pp.  20, 143, 

145,  257. 
Dillebar  v.  Home  Life  Ins.  Co.,  87  X.  Y. 

79,  pp.  65,  66,  79. 


TABLE    OF    CASES    CITED. 


XX  111 


Di  Sora  v.  Phillips,  10  H.  L.  Cas.  624,  p. 

276. 
Division  of  Howard  County,  15  Kan.  U>4, 

p.  197. 
Dobson  v.  Whisenhant,  101  X.  C.  615,  p. 

256. 

Dodge  v.  Coffin,  15  Kan.  277,  p.  200. 
Doe  v.  Beynon,  12  A.  &  E.  431,  p.  286. 
Doe  v.  Eslava,  11  Ala.  1028,  p.  197. 
Doe  v.  Roe,  31  Ga.  599,  p.  2s9. 
Doe  v.  Suckenmore,  5  Ad.  &  El.  703,  p. 

302,  310. 

Doe  v.  Tarver,  R.  &  M.  141,  p.  310. 
Doe  v.  Wilson,  10  Moore,  P.  C.  502,  p.  340. 
Dolan  v.  City  of  Moberly,  17  Mo  App. 

4.'ffi,  p.  189. 
Dole  v.  Johnson,  50  X.  H.  452.  pp.  48,  54, 

402. 

Dolph  v.  Barney,  5  Oreg.  191,  p.  197. 
Dolz  v.  Morris,  17  X.  Y.  Sup.  Ct.  202,  pp. 

61,  230. 
Donaldson  v.  Mississippi,  etc  R.  R.  Co., 

18  Iowa,  281,  pp.  387,  392,  396. 
Donnelly  v.  Fitch,  136  Mass.  568,  pp.  20, 

266. 

Doran  v.  Muller,  78  111.  342,  p.  88. 
Dorsey  v.  Dorsey,  5.  J.  J.  Marsh.    (Ky.) 

ISO,  p.  199. 

Dorsey  v.  AVarfield,  7  Md.  65,  p.  158. 
Doster  v.  Brown,  25  Ga.  24,  p.  258. 
Dougherty  v.  Snyder,  15  S.  &  R.  65,  pp. 

201, 213. 

Dove  v.  State,  50  Term.  348,  pp.  80, 158- 
Dow  v.  Julien,  32  Kan.  576,  p.  16. 
Dow  v.  Spenny,  29  Mo.  387,  p.  328. 
Dowd  v.  Guthrie,  13  111.  App.  653,  p.  20.  | 
Downs  v.  Sprague,   1   Abbott's  Ct.  of  I 

App.  Decis.  (N.  Y.)  550,  p.  275. 
Drake  v.  Glover,  30  Ala.  382,  p   199. 
Dubois  v.  Baker,  30  N.  Y.  355,  pp.  297,299,  ' 

300,301,  32i). 
Duchess  of  Kingston's  Case,  Hargr.  St. 

Tr.  243,  20  How.  St.  Tr.  613,  p.  105. 
Duchess  Di  Siora's  Case,  10  House  of 

Lords'  Cases,  640,  p.  223. 
Duncan  v.  Seeley,  34  Mich.  369,  p.  89. 
Dundas  v.  City  of  Linsing,  75  Mich.  499, 

118. 

Dungan  v.  Beard,  2  N.  &  M.  400,  p.  289. 
Dunham's  Appeal,  27  Conn.  193,  p.  75. 
Dunham  v.  Simmons,  3  Hill  (N.  Y.).  609, 

p.  367. 
Duntz  v.  Van  Beuren,  12  N.  Y.  Sup.  Ct. 

648,  p.  190. 
Durrell  v.  Bederly,  Holt  N.  P.  Cas.  283,  ; 

p.  247. 

Durst  v.  Burton,  47  N.  Y.  167,  p.  348. 
Dushane  v.  Benedict,  120  U.  S.  647,  p.  192. 
Dyer  v.  Dyer,  87  Ind.  13,  p.  12. 


Dyer  v.  Morris,  4  Mo.  214,  p.  90. 
Dyer  v.  Rosenthal,  45  Mich.  588,  p.  350. 
Dyer  v.  Smith,  12  Conn,  385,  pp  199,  226. 
Dyson  v.  X.  Y.,  etc.  R.  R.  Co.,  57  Conn.  9, 
p.  333. 

E. 

Eagan  v.  Cowen,  39  Law  Times,  223,  In 

Ir.  Ex.,  p.  312. 
Eagle,  etc.  Manuf.  Co.  v.  Brown,  58  Ga. 

240,  p.  379. 
Earl  Nelson  v.  Lord  Bridgport,  8  Beav. 

527, p.  2  2. 
East    Tennessee,    etc.     R.    R.    Co.   v. 

Wright,  76  Ga.  532,  p.  15. 
Eaton  v.  Smith,  20  Pick.  (Mass.)  156,  p. 

274. 
Eborn  v.  Zimpleman,  47  Tex.  503,  pp. 

314,331,  334. 

Ebos  v.  State,  34  Ark.  520,  pp.  34, 121, 130. 
Eckert  v.St.  Louis,  etc.  R.  R.Co.,13  Mo. 

App.  352,  p.  237. 

Ecles  v.  Bates,  26  Ala.  655,  pp.  116, 121. 
Eddie  v.  East  India  Co.,  2  Burr.  1226,  p. 

196. 

Edelen  v.  Gough,  8  Gill  (Md.),  87,  p.  287. 
Edelin  v.  Sander's  Exrs.,  8  Md.  118,  p. 

301. 
Edington  v.  Jitna  Life  Ins.  Co.,  77  N.  Y. 

564,  pp.  106,  107,  108,  121. 
Edmonds  v.  City  of  Boston,  108  Mass. 

535,  pp.  351,  375. 

Eggers  v.  Eggers,  57  Ind.  461,  p.  457. 
Eggler  v.  People,  56  X.  Y.  642,  p.  130. 
Eisfleld  v.  Dill,  71  Iowa,  442,  p.  309. 
Elfelt  v.  Smith.  1  Minn.  126,  p.  384. 
Elliott  v.  Russell,  92  Ind.  526.  pp.  61,  71. 
Elliott  v.  Van  Buren,33  Mich.  49,  p.  116. 
Ellingwood  v.  Bragg,  62  N.  H.  488,  pp.  6, 

307. 

Elting  v.  Sturtevant,  41  Conn.  176,  p.  379. 
Elton  v.  Larkins,  5  C.  &  P.  385,  p.  247. 
Ely  v.  James,  123  Mass.  36,  p.  227. 
Ely  v.  Tesch,  17  Wis.  202,  p.  492. 
Emerson  v.    Lowell  Gas  Light  Co.,  6 

Allen,  146,  pp.  58,  103. 
Emery  v.  Berry,  8  Foster  (X.  H.),  473,  p. 

205. 
Emery  v.  Raleigh,  etc.  R.   R.  Co.,  102  N. 

C.  217,  p.  245. 
Emmons  v.  Minneapolis,  etc.  R.  R.  Co., 

41  Minn.  133,  p.  370. 
Empire  Manuf.  Co.  v.  Stuart,  46  Mich. 

482,  p.  288. 

Ennis  v.  Smith,  14  How.  400,  pp.  200,205. 
Enright  v.  The  Railroad  Co.,  33  Cal.  230, 

p.  15. 
Epps  v.  The  State,  102  Ind.  539,  pp.  78, 

400. 


XXIV 


TABLE    OF    CASES    CITED. 


Erd  v.  Chicago,  etc.  R.  R.  Co.,  41  Wis. 

64,  p.  373. 
Erickson  v.  Smith,  2  Abb.  Ap.  Decis.  (X. 

Y.)64,  p.  187. 

Errisman  v.  Errisman,25  111.  136,  p.  90. 
Erwin  v.  Clark,  13  Mich.  10,  p.  271. 
Estate  of  Brooks,  54  Cal.  471,  p.  158. 
Estate  of  Toomes,  54  Cal.  510,  p.  161. 
Evans  v.  Commercial  Ins.  Co.,  6  R.  I.  47, 

p.  274. 
Evans  v.  People,  12  Mich.  27,  pp.  11,  27, 

191. 
Evans  v.  Reynolds,  32  Ohio  St.  163,  p. 

199. 
Evansville,  etc.  R.  R.  Cd.  v.  Crist,  116 

Ind.  446,  p.  188. 
Evansville  R.  R.  Co.  v.  Fitzpatrick,  10 

Ind.  120,  pp.  20,  367,  369. 
Evansville,  etc.  R.  R.  Co.  v.  Young,  28 

Ind.  616,  p.  272. 

Evarts  v.  Middlebury,  53  Vt.  626,  p.  278. 
Everett  v.  The  State,  62  Ga.  65,  p.  103. 
Exchange  Bank  v.  Coleman,  1  W.  Va. 

69,  p.  271. 

Exparte  Dement,  53  Ala.  389,  p.  433. 
ExpartcThlstlevrood,   19  Vesey,  236,  p. 

386. 
Exparte  Whitehead,  1  Merivale,  127,  p. 

386. 
Eyerman  v.  Sheehan,  52  Mo.  221,  pp.  9, 

279. 

F. 

Fairbank  v.  Hughson,  58  Cal.  314,  p.  39. 
Fairchild  v.  Bascom,  35  Vermont,  398, 

pp.  18,  69, 81,  83, 101,  104,  165. 
Fairley  v.  Smith,  87  N.  C.  367,  p.  351. 
Farmers'  Ins.  Co.  v.  Bair,  87  Pa.  St.  124, 

p.  88. 

Farr  v.  Swan,  2  Pa.  St.  245,  p.  255. 
Farrell  v.  Brennan,  32  Mo.  328,  pp.  81, 

165. 

Faulkner  v.  Hendy,  79  Cal.  265,  p.  442. 
Fayette  v.  Chesterville,  77  Me.  28,  pp.  55, 

162, 163. 

Feaubert  v.  Turst,  Pre.  Ch.  207,  p.  198. 
Fee  v.  Taylor,  83  Ky.  259  (1885),  p.  325. 
Fenwick  v.  Bell,  1  Car.  &  Ker.  311,  pp. 

230,  234. 

Fenwick  v.  Reed,  6  Md.  7,  p.  286. 
Ferguson  v.  Clifford,  37  N.  H.  36,  p.  225. 
Ferguson  v.  Davis  Co.,  67  Iowa,  601,  p. 

189. 
Ferguson  v.  Hubbell,  97  N.  Y.  607,  513, 

pp.  23,  26. 
Ferguson  v.  Hubbell,  26  Hun  (N.  Y.) 

250,  p.  265. 

Ferguson  v.  Stafford,  33  Ind.  162,  p.  373. 
Fielder  v.  Collier,  13  Ga.  4%,  p.  158. 
Filer  v.  N.  Y.  Cent.  R.  R.  Co.,  49  N.  Y.  42, 

pp.  66, 121, 122. 


Filley  v.  Billings,  42  N.  W.  Rep.  713,  p. 

267. 
First  Baptist  Church  v.  Brooklyn  Fire 

Ins.  Co.,  28  X.  Y.  153,  p.  274. 
First  Xat.  Bank  of  Houghton  v.  Robert, 

41  Mich.  109,  pp.  328,  340. 
First  National  Bank  v.  Wirebach,  106 

Pa.  St.  37, 44,  p.  8. 
Fish  v.  Dodge,  4  Denio  (N.  Y.),  311,  p. 

367. 

Fishburne  v.  Ferguson,  84  Va.  87,  p.  158. 
Fitts  v.  C.  C.  R.  R.  Co.,  59  Wis.  323,  p. 

241. 

Fitzgerald  v.  Hayward,  50  Mo.  516,  p.  6. 
Flanders  v.  Colby,  28  X.  H.  34,  p.  446. 
Fleming  v.  Delaware,  etc.  Canal  Co.,  8 

Hun  (N.  Y.),358,p.  367. 
Fletcher  v.  Seekel,  1  R.  I.  267,  p.  486. 
Florey's  Exrs.  v.  Florey,  24  Ala.  247,  p. 

158. 

Flynn  v.  Wahl,  10  Mo.  App.  582,  p.  378. 
Flynt  v.  Bodenhamer,  80  X.  C.  205,  207, 

pp.  39,  54, 121,  445,  472. 
Fogg  v.  Dennis,  3  Humph.  47,  p.  329. 
Folkes  v.  Chadd,  3  Douglas  (26  Eng.  C. 

L.  63),  175,  pp.  20,  252,  268. 
Foltz  v  The  State,  33  Ind.  215,  p.  10. 
Forbes  v.  Caruthers,  3  Yeates  (Penn.), 

527,  pp.  6,  20,  254. 

Forbes  v.  Howard,  4  R.  I.  366,  p.  351. 
Forcheimer  v.  Stewart,  73  Iowa,  216,  p. 

283. 
Ford  v.  Tirrell,  9  Gray  (Mass.),  401,  p. 

262. 
Forest  City  Ins.  Co.  v.  Morgan,  22  111. 

App.  Ct.  Rep.  199,  pp.  400,  408. 
Forgery  v.  First  Xational  Bank,  66  Ind. 

123,  pp.  39,  53,  445. 
Forsythe  v.  Doolittle,  120  U.  S.  73,  pp. 

69,  77,  487. 

Forsythe  v.  Preer,  62  Ala.  443,  p,  199. 
Fort  v.  Brown,  46   Barb.  (N.  Y.)  366,  p. 

115. 

Foster  v.  Brooks,  6  Ga.  290,  pp.  158, 167. 
Foster  v.  Collner,  107  Pa.  St.  305,  pp. 

324,  329. 

Foster  v.  Taylor,  2  Over.  191,  p.  200. 
Foster  v.  Ward,  75  Ind.  594,  p.  353, 
Fountain  v.  Brown,  38  Ala.  72,  p.  190. 
Fowler  v.  County     Commissioners,    6 

Allen,  92,  p.  350. 
Frank  v.  Chemical  Nat.  Bank,  37  N.  Y. 

Sup.  Ct.  30,  p.  294. 
Frankfort,  etc.  R.  R.  Co.  v.  Windsor,  51 

Ind.  240,  p.  373. 
Franklin  Fire  Ins.  Co.  v.  Grover,  100 Pa. 

St.  266,  pp.  27,  28,  249. 
Frantz  v.  Ireland,  66  Barb.  386,  p.  280. 
Frary  v.  Gusha,  59  Vt.  257,  p.  32. 


TABLE    OF    CASES    CITED. 


XXV 


Fraser  v.  Jenniaon,  42  Mich.  206,  pp.  11, 

67,  91,  92, 109, 167, 168,  413. 
Fraser  v.  Tapper,  29  Vt.  409,  pp.  31,  265. 
Freeman  v.  People,  4  Denio,  9,  p.  169. 
Freeman  v.  Travelers'  Ins.  Co.  144  Mass. 

572,  p.  239. 
Freemoult  v.  Dedlre,  1  P.  Wms.  430,  p. 

198. 
Fremont,  etc.  R.    R.  Co.  v.  Marley,  25 

Xeb.  138,  p.  367. 
Fremont,  etc.  R.  R.   Co.  v.  Whalen,  11 

Xeb.  585,  p.  370. 


Frith  v.  Barker,  2  Johns.  (X.  Y.)  334,  p. 

271. 

Friezell  v.  Reed,  77  Ga.  724,  p.  158. 
Frost  v.  Blanchard,  97  Mass.  155,  p.  6. 
Fuller  v.  Fox,  101  N.  C.  119,  p.  522. 
Fulton  v.  Hood,  34  Pa.  St.  365,  p.  SCO. 
Funston  v.  Chicago,  etc.  R.  R.  Co.,  61 

Iowa,  452  (1883),  p.  7. 


Q. 


G v.  G (L.  R.),  2  Prob.  &  Div.  287, 

pp.  172, 175. 

Gaines  v.  Stiles,  14  Pet.  322,  p.  445. 
Gale  v.  Spooner,  11  Vt.  152,  p.  446. 
Galena,  etc.  R.  R.  Co.  v.  Haslem,  73  111 . 

494,  p.  373. 
Gullager  v.  Market  St.  Ry.  Co.,  67  Cal. 

13,  pp.  391,  399,  408. 
Gallagher  v.  The  People,  120  111.  179, 

182, p.  11. 
Gardner  v.  Lewis,  7  Gill   (Md.),  379,  p. 

205. 
Gardner  v.  People,  6  Parker  Cr.  Cas. 

155,  p.  127. 
Garfleld  v.  Kirk,  65  Barb.  (N.  Y.)  464,  p. 

381. 

Garret's  Case,  71  N.  C.  58,  p.  177. 
Garrells  v.  Alexander,  4  Esp.  87,  p.  287.  i 
Gartside  v.  Conn.  Mut.  Lite  Ins.  Co.,  76  '• 

Mo.  446,  pp.  108, 109. 
Garvey  v.  Owens,  37  Hun  (N.  Y.),  498,  p.  ' 

290. 

Garvin  v.  State,  52  Miss.  209,  p.  329. 
Garwood  v.  X.  Y.  Cent.,  etc.  R.  R.  Co., 

45  Hun,  128,  p.  392. 

Gassenheimer  v.  State,  52  Ala.  314,  p.  6. 
Gates  v.  Fleischer,  67  Wis.  504,  p.  71. 
Gauntlet  v.  Whitworth,  2  C.  &  K.  720,  p. 

362. 
Gavisk  v.  Pacific  R.  R.,  49  Mo.  274,  pp. 

25,  29,  239. 
Gay   v.    Union    Mut.  Life  Ins.    Co.,  9 

Blatch,  142,  p.  485. 
Gaylor's  Appeal,  43  Conn.  82,  p.  227. 
Geisendorf  v.  Eagles,  106  Ind.  38,  p.  80. 
Gere  v.  Councils  Bluff  Ins.  Co.,  67  Iowa, 

272,  pp.  266,  365. 


Getchell  v.  Hill,  21  Minn.  464,  pp.  71,  490, 

492. 
Geylin  v.  Villeroi,  2  Houston  (Del.), 311, 

p.  276. 

Gibbon  v.  Budd,  32  L.  J.  Ex.  182,  p.  384. 
Gibbon  v.  Budd,  2  H.  &  C.  92,  p.  384. 
Gibson  v.  Cincinnati  Enquirer,  5  Cent. 

L.  J.  380  (U.  S.  Circuit  Ct.  South. 

Dist.  Ohio),  pp.  273,  277. 
Gibson  v.  Gibson,  9  Yerg,  (Tenn.)  329, 

pp.  81,  166,  158,  165. 
Gilbert  v.  Guild,  144  Mass.  601,  p.  261. 
Gilbert  v.  Kennedy,  22  Mich.  117,  p.  364. 
Gilbert  v.  Simpson,  6  Daly  (N.Y.),30,  p. 

340. 
Gilman  v.  Town  of  Stratford,  50  Vt.  726, 

p.  72. 

Gilpin  v.  Consequa,  3  Wash.  184,  p.  349. 
Gitchell  v.  Ryan,  24  App.  Ct.  375,  pp. 

325,  328. 
Goddard  v.  Gloninger,  5  Watts,  209,  p. 

289. 
Goldstein  v.  Black.  50  Cal.  464,  pp.  293, 

295. 

Goldsmith  v.  Sawyer,  46  Cal.  209,  p.  197. 
Goods  v.  Bonnelli,  1  Prob.  Div.  (L.  R.) 

69,  p.  222. 
Goods  v.  Hindmarch,  1  P.  &  M.  307,  p. 

301. 

Goodsall  v.  Taylor,  41  Minn.  207,  p.  283. 
Goodtitle  v.  Braham,  4  Term,  497,  p.  299. 
Goodwin  v.  Jack,  62  Me.  414,  p.  286. 
Goodwin  v.  State,  %  Ind.  500,  pp.  9,  66, 

158,  477,  486. 

Goodwin  v.  Scott,  61  X.  H  112,  p.  40. 
Goodyear  v.  Vosburgh,  63  Barb.  (X.  Y.) 

154,  pp.  299,  305. 
Gordon  v.  Price,  10  Ired.  (N.  C.)  385,  pp. 

289,346. 
Goshen  v.  England  (Ind.),  21  N.  E.  Rep. 

977, p.  190. 
Gossler  v.  Eagle   Sugar  Refinery,  103 

Mass.  331,  335,  pp.  57, 145. 
Gotlieb  v.  Hartman,  3  Colo.  53,  p.  65. 
Gould  v.  Jones,  1  W.  Bl.  884,  p.  288. 
Gourley  v.  St.  Louis,  etc.  R.  R.  Co.,  Mo. 

App.  87  (1889),  p.  244. 
Grail  v.  Tower,  85  Mo.  249,  p.  109. 
Grand  Rapids,  etc.  R.  R.  Co.  v.  Ellison, 

117  Ind.  234,  241,  p.  33. 
Grand  Rapids,  etc.  R.  R.  Co.  v.  Huntley, 

38  Mich.  537,  pp.  113, 117,  238,  245. 
Grand  Rapids,  etc.  R.  R.  Co.  v.  Martin, 

41  Mich.  667,  p.  109. 
Grand  Rapids  v.  R.  R.  Co.,  58  Mich.  642, 

p.  370. 
Grant  v.  Thompson,  4  Conn.  203,  pp. 

156,  169. 
Grattan  v.  Metropolitan  Life  Ins.  Co., 

92  N.  Y.  274,  p.  108. 


XXVI 


TABLE    OF    CASES    CITED. 


Graves  v.  Keaton,  3  Coldw.  (43  Tenn.) 

8,  p.  197. 
Great  Western  R.  R.  Co.  v.  Haworth,  39 

111.  349,  p.  260. 

Greeley  v.  Stillson,  27  Mich.  153,  p.  350. 
Green  v.  Asplnwall,  1  City  Hall    Re- 
corder, 14,  p.  392. 
Gregory  v.  McDowel,  8  Wend.  435,  p. 

349. 
Gribble  v.  Pioneer  Press  Co.,  37  Minn. 

277,  p.  19. 
Griffen  v.  Rice,  1  Hilton  (N.  Y.),  184,  p. 

-72. 
(irirliu  v.  Town  of  Willow,  43  Wis.  509. 

p.  6. 
Griffith  v.  Spratley,  1  Cox.  Ch.  389,  p. 

386. 
Grigsby  v.  Clear  Lake  Water  Co.,  40 

Cal.  405,  pp.  252,  449,  452. 
Grinnell  v.  Chicago,  etc.  R.  R.  Co.,  73 

Iowa,  93,  p.  240. 
Griswold  v.  New  York,  etc.  R.  R.  Co., 

23  N.  Y.  Sup.  R.  729,  p.  188. 
Griswold  v.  N.  Y.  Central  R.  R.  Co.,  115 

N.  Y.  61,  p.  122. 

Grubb  v.  State,  117  Ind.  277,  p.  157. 
Guetig  v.  State,  66  Ind.  94,  pp.  66,  77,  163, 

492. 
Guggenheim  v.  Lake  Shore,  etc.  R.  R. 

Co.,  66  Mich.  150,  pp.  244,  245. 
Gulf  City  Ins.  Co.  v.  Stephens,  52  Ala. 

121,  p.  39. 
Guiterman  v.  Liverpool,  etc.  Steamship 

Co.,  83  N.  Y.  358,  pp.  61,  64,  71,  75,  231. 
Gurney  v.  Langlands,  5  Barn.  &  Aid.  330, 

p.  462. 
Gutridge  v.  Missouri,  etc.  R.  R.  Co.,  94 

Mo.  468,  p.  26. 

H. 

H v.  P (L.  R.),  3  Prob,  &  Div.  126, 

pp.  172,176. 

Haas  v.  Choussard,  17  Tex.  592,  p.  257. 
Hagadorn   v.  Conn.  Mut.  Life  Ins.  Co., 

22  Hun  (X.  Y.),  249,  pp.  70,  71. 
Hagaman  v.  Moore,  84  Ind.  496,  p.  369. 
Haggerty  v.  Brooklyn,  etc.  R.  R.  Co.,  61 

N.  Y.  73,  83. 

Haight  v.  Kirabak,  51  Iowa,  13,  p.  356. 
Haish  v.  Payson,  107  111.  365,  pp.  67,  381. 
Hale  v.  New  Jersey  Steam  Xav.  Co.,  15 

Conn.  649,  p.  226. 

Hale  v.  Ross,  3  N.  J.  Law,  373,  p.  210. 
Haley  v.  State,  63  Ala.  89,  p.  274. 
Hall  v.  Co8tello,48  N.  H.  176,  p.  217. 
Hall  v.  Huse,  10  Mass.  39,  p.  320. 
Hall  v.  People,  39  Mich.  717,  p.  446. 


Hall  v.  Van  Vranken,  28    Hun,  403,  pp. 

288,  315,  316. 

Ham  v.  Salem,  100  Mass.  350,  p.  350. 
Hamel  v.  Panet,  3  Quebec  Law  R.  173, 

p.  301. 

Hames  v.  Brownlee,  63  Ala.  277,  p.  6. 
Hamilton  v.   Des   Moines  Valley  R.  R. 

Co.,  36  Iowa,  31,  p.  20. 
Hamilton  v.  Nickerson,  3  Allen  (Mass.), 

351,  p.  272. 

Hamilton  v.  People,  29  Mich.  173,  p.  447. 
Hammond  v.  Schiff,  100  N.  C.  161,  p.  54. 
Hammond  v.  Varian,54  N.  Y.  398,  p.  289. 
Hammond  v.  Woodman,  41  Me.  177,  p. 

257. 
Hand  v.   Brookline,  126  Mass.  324,  pp. 

57,  59,  279. 
Hand  v.  Church,  39  Hun  (N.  Y.),  304,  p. 

45. 

Haney  v.  Clark,  65  Texas,  93,  p.  11. 
Hanover  Water   Co.   v.   Ashland  Iron 

Co.,  84  Penn.  St.  284,  p.  373. 
Hancock  v.  State,  13  Tex.  Ct.  of  App.  97, 

p.  297. 
Hanriott  v.   Sherwood,  82  Va.  291,  pp. 

323,  330. 

Hardin  v.  Sparks,  70  Texas,  429,  p.  57. 
Hardy  v.  Merrill,  56  N.  H.  227,  pp.  156, 

157. 

Harford  v.  Morris,  2  Hagg.  430,  p.  202. 
Harford  County  v.  Wise  (Md.),  18  Atl. 

Rep.  31,  p.  13. 
Harl»nd  v.  Lilienthal,  53  N.  Y.  438,  pp. 

381-382. 
Harnett  v.  Garvey,  66  N.  Y.  641,  pp.  66, 

380. 

Harrington  v.  Fry,  1  C.  &  P.  289,  p.  288. 
Harris  v.  Detroit  City  Railway  Co.,  76 

Mich.  227,  p.  116. 
Harris  v.  Detroit,  etc.  R.  R.  Co.  (Mich.), 

42  N.  W.  Rep.  Ill,  p.  191. 
Harris  v.  Panama  R.  R.  Co.,  3  Bosw.  1, 

p.  403. 
Harris  v.    Rathbun,    2   Abbott  (Ct.  of 

App.  Decis.),  328,  p.  274. 
Harris  v.  State,  18  Tex.  Ct.  of  App.  287, 

pp.  153,  161. 
Harris  v.  Township  of  Clinton,  64  Mich. 

457,  p.  39. 

Harrison  v.  Glover,  72  N.  Y.  451,  p.  350. 
Harrison  v.  Harrison,  4  Moore,  P.  C.  96, 

p.  176. 
Harrison  v.  Iowa,  etc.  R.    R.    Co.,  36 

Iowa,  323,  p.  369. 
Hart  v.  Hudson    River  Bridge  Co.,  84 

N.  Y.  56,  pp.  251,  253. 
Hart  v.  Vidal,  8  Cal.  56,  p.  381. 
Hartford  Protection  Ins.  Co.  v.  Harmer, 

2  Ohio  St.  452,  pp.  21,  247,  248. 


TABLE    OF    CASES    CITED. 


XXV11 


Hartman  v.  Key8tone  Ins.  Co.,  21  Pa. 

St.  466,  pp.  247,  248,  249,  388. 
Harvester  Co.  v.  Miller,  72  Mich.  265,  p. 

3-20. 

Harvey  v.  State,  40  Incl.  516.  p.  418. 
Ha.skins  v.   Hamilton  Mut.   Ins.  Co.,  5 

Gray  (Mass.),  432,  p.  364. 
Haskins  v.  Warren,  115  Mass.  514,  p.  271. 
Hastings  v.  Rider,  99  Mass.  622,  pp.  101, 

156,158,162. 
Hastings  v.  Steamer  Uncle  Sam,  10  Cal. 

341,  p.  20. 
Hatch  v.  State,  6  Tex.  Ct.  of  App.  384,  p. 

314. 
Hathaway's  Admr.  v.  National  Life  Ins. 

Co.,  48  Vt.  335,  pp.   66,  77,  99,  101, 160. 
Haulenbe  k  v.  Cronkright,  23  N.  J.  Eq. 

413,  p.  372. 

Haven  v.  Markstrum,  67  Wis.  493,  p.  448. 
Haver  v.  Tenney,  36  Iowa,  80,  p.  262. 
Hnverhill  Loan,  etc.  Ass.  v.   Cronin,  4 

Allen  (Mass.),  141,  p.  86. 
Hawes  v.  X.  E.  Ins.  Co  ,  2  Curtis  C.  C. 

229,  pp.  247,  248,  250. 
Hawkins  v.  Grimes,  13  B.  Mon.  260,  p. 

328.  , 

Hawkins  v.  State,  25  Ga.  207,  p.  6. 
Haycock  v.  Greup,  57  Pa.  St.  438,  p.  329. 
Hayes  v.  Ottawa,  Oswego,  etc.   R.  R. 

Co.,  54  111.  373,  p.  373. 
Hayes  v.  Wells,  34  Md.  513,  pp.  6,  450. 
Haynes  v.  Mosher,  15  How.  Pr.  216,  p. 

442. 
Hays  v.  Ottawa,  etc.  R.  R.  Co. ,54  111.  373, 

p.  370. 
Hayward  v.  Knapp,  23  Minn.  430,  pp. 

•235,  269. 

Haywood  v.  Rodgers,  4  East,  590,  p.  247. 
Hazelton  v.  Union  Bank,  32  Wis.  47,  p. 

329. 

Hazen  v.  Smiley,  28  Kan.  278,  p.  350. 
Hazzard  v.  Vickery,  78  Ind.  64,  pp.  319, 

328. 
Heacock  v.  State,  13  Tex.  Ct.  of  App.  97, 

pp.  40,  53,  55. 
Head  v.  Hargrave,  105  U.  S.  45,  p.  381, 

489. 
Heald  v.  Thing,  45  Me.  392,  pp.  2,  58,  39, 

113,  116,  162,  200. 
Heard   v.  State,  9  Tex.  Ct.  of  App.  1, 

p.   314. 
Hearn  v.  New  England   Mut.  Ins.  Co.,  3 

Clifford  C.  C.  318,  p.  274. 
Heath  v.  Glisan,  3  Oregon,  67,  p.  149. 
Heath  v.    Watts  Prerog.    1798  1  Cases 

Eng.  Ecc.  Cts.  43,  note  b.,  p.  310. 
Heathcote  v.  Paignon,  2  Brown's  Ch. 

167,  p.  386. 

Hebard  v.  Myers,  5  Ind.  94,  p.  200. 
Heldt  v.  State,  20  Neb.  492,  p.  447. 


Hemphill  v.  Bank  of  Alabama,  6  Sm.  & 

M.  (Miss.)  44,  p.  199. 
Hempstead  v.  Reed,  6  Conn.  48,  p.  199. 
Henderson  v.  Hackney,  16  Ga.  525,  p. 

328. 

Henry  v.  Hall,  13  111.  App.  343,  pp.  61,  75. 
Herrick  v.  Swomley,  56  Md.  440,  pp.  325, 

328. 
Hess  v.  Lowrey  (Sup.  Ct.  Ind.  1890),  7  L. 

R.  A.  90,  p.  184. 

Hess  v.  Ohio,  5  Ohio,  6,  pp.  344,  345. 
Heuston  v.  Simpson,  115  Ind.  62,  p.  108. 
Hewlett  v.  Wood,  55  N.  Y.  634,  p.  159. 
Hickman  v.  State,  38  Tex.  191,  p.  156. 
Hicks  v.  Person,  19  Ohio,  427,  p.  322. 
Higbe  v.  Guardian  Mut.  Life  Ins.  Co.,  53 

N.  Y.  603,  p.  189. 

Higgins  v.  Carlton,  28  Md.  115,  pp.  6,  20. 
Higgins  v.  Dewey,  107  Mass.  494,  pp.  31, 

265. 

Higgins  v.  Downs,  75  Me.  346,  pp.  55,  57. 
Hill  v.  King  Manufacturing  Co.,  79  Ga. 

105,  p.  18. 
Hill  v.  Lafayette  Ins.  Co.,  2  Mich.  476, 

pp.  246,247;   8.  C.,  3  Benn.  Fire  Ins. 

Cas.  325,  p.  247. 
Hill  v.   Portland,  etc.  R.  R.  Co.,  55  Me. 

439,  pp.  16,61,243. 

Hill  v.  Sturgeon,  28  Mo.  323,  p.  234. 
Hill  v.  City  of  Kansas,  8  Mo.  623,  p.  487. 
Hills  v.  Home  Ins.  Co.,  129  Mass.  345, 

pp.  40,  362. 

Hilsley  v.  Palmer,  32  Hun,  472,  p.  343. 
Hilton  v.  Mason,  92  Ind.  157,  p.  20. 
Hinckley  v.  Kersting,  21  111.  247,  p .  357. 
Hine   v.  New  York,  etc.  R.  R.  Co.,  36 

Hun,  293,  p.  370. 
Hitchcock  v.  Chicago,  etc.  R.  R.  Co.,  66 

Mich.  76,  p.  491. 
Hitchcock  v.  Clendinen,  12  Beav.  534, 

p.  219. 
Hoard  v.  Peck,  56  Barb.  (N.  Y.)  202,  pp. 

64, 118. 
Hoarev.  Silverlock,  12  Ad.  &  El.  (N.  8.), 

624, p.  273. 
Hobbs  v.  Memphis,  etc.  R.  R.  Co.,  66 

Tenn.  874,  p.  200. 
Hobby  v.  Dana,  17  Barb.  (N.  Y.)  Ill,  pp. 

247,  250. 
Hockmoth  v.  Des  Grand  Champs,  71 

Mich.  520,  p.  255. 

Hoener  v.  Kock,  84  111.  408,  p.  149. 
Hoes  v.  Van  Alstyne,  20  111.  202,  pp.  205, 

212. 

Hoffman  v.  Click,  77  N.  C.  556,  p.  390. 
Hoitt  v.  Moulton,  1  Foster,  586,  p.  352. 
Holcomb  v.  Holcomb,  95  N.  Y.  316,  pp. 

156, 159. 

Holden  v.  Robinson  Co.,  65  Me.  216,  p.  6. 
Holliman  v.  Cabanne,  43  Mo.  568,  p.  6. 


XXV111 


TABLE    OF    CASES    CITED. 


Holman  v.  King,  7  Met.  (Mass.)  384,  p. 

226. 

Homer  v.  Dorr,  10  Mass.  26,  p.  272. 
Homer  v.  Taunton,  5  H.  &  N.  661,  p.  273. 
Homer  v.  Wallis,  11  Mass.  312,  pp.  320, 

329. 

Hoop  v.  Stovall,  26  Ga.  704,  p.  121. 
Hooper  v.  Moore,  5  Jones  X.  C.  Law, 

130,  p.  226. 
Hope  v.  Troy,  etc.  R.  R.  Co.,  40  Hun,  438, 

p.  112. 
Hopkins  v.  Indianapolis,  etc.  R.  R.  Co., 

78  111.  32,  p.  16. 
Hoppe  v.  Chicago,  etc.  R.  R.  Co.,  61  Wis. 

357,  p.  245. 

Hopper  v.  Ashley,  15  Ala.  463,  p.  286. 
Hopper  v.    Commonwealth,    6    Gratt. 

(Va.)  684,  p.  90. 
Hopper  v.  Ludluui,  41  N.  J.  Law,  182, 

p.  380. 

Hopt  v.  Utah,  120  U.  8.  431,  p.  131. 
Home  Tooke's  Case,  25  How.  St.  Tr.  71, 

p.  287. 

Home  v.  Williams,  12  Ind.  324,  pp.  81, 87. 
Horton  v.  Chadbourne,  31  Minn.  322,  p. 

89. 

Horton  v.  Green,  64  N.  C.  64,  p.  101. 
Hosford  v.  Nichols,  1  Paige  (N.  Y.),  220, 

pp.  198, 199. 

Hough  v.  Cook,  69  111.  381,  pp.  351,  363. 
Houghton  v.  Jones,  1  Wallace,  702,  p. 

88. 
House  v.  Fort,  4  Blackf.  (Ind.)  293,  p. 

193. 
Houston,  etc.  R.  R.  Co.  v.  Burke,  55  Tex. 

324,  p.  362. 
Houston,  etc.  R.  R.  Co.  v.  Smith,  52  Tex. 

178,  p.  6. 

Hovey  v.  Chase,  52  Me.  304,  p.  77. 
Hovey  v.  Sawyer,  5  Allen   (Mass.),  554, 

pp.  25,  30. 
Howard  v.  Great  Western,  etc.  Co.,  109 

Mass.  384,  p.  46. 
Howard  v.  Patrick,  43  Mich.  122,  pp.  328, 

342. 
Howard  v.  Providence,  6  R.  I.  516,  pp. 

40,445. 
Hoyt  v.  Hoyt,  112  N.  Y.  493,  pp.  109,  110, 

111. 
Hoyt  v.  Long  Island  R.  R.  Co.,  57  N.  Y. 

678,  p.  243. 

Hoyt  v.  Neil,  13  Minn.  390,  p.  199. 
Hubbard  v  State,  7  Ala.  164,  p.  191. 
Hubble  v.  Osborne,  31  Ind.  249,  p.  91. 
Hudson  v.  Draper,  5  Fisher  Pat.   Gas. 
256,  p.  270 ;  8.  C.,  4  Clifford,  181,  p  270. 
Hudson  v.  State,  61  Ala.  334,  p.  373. 
Huff  v.  Hall,  56  Mich.  456,  p.  372. 
Huff  v.  Nims,  11  Neb.  364,  p.  340. 
Huffman  v.  Click,  77  N.  C.  55,  pp.  403,  408, 


Hughes  v.  Westmoreland  Co.,  104   Pa. 

St.  207,  p.  88. 

Humes  v.  Bernstein,  72  Ala. 546,  p.  256. 
Humphries  v.  Johnson,  20  Ind.  190,  p. 

20,  445,  486. 
Hunt  v.  Lowell  Gas  Light  Co.,  8  Gray, 

169, p.  62. 
Hunt  v.  State,  9  Tex.  Ct.  of  App.  166,  pp. 

64,  113. 
Hunt's  Heirs  v.  Hunt,  3  B.  Monr.  (Ky.) 

577,  p.  158. 

Hurlbut  v.  Meeker,  104  111.  541,  p.  88. 
Hurst  v.  The  (J.,  R.  I.  etc.  R.  R.  Co.,  4S 

Iowa,  76,  pp.  66, 113. 
Huston  v.  Schindler,  46  Ind.  40,  p.  319. 
Hyatt  v.  Adams,  16  Mich.  180,  p.  116 
Hynes  v.  McDermott,82  N.  Y.  41,  pp.  214, 

329,  332,  337. 
'  Hyde  v.  Woolfolk,  1  Iowa,  159,  pp.  53, 

295,  311,  316,  331. 

I. 

Illinois  Central  R.  R.  Co.  v.  Copeland, 

24  111.  336,  p.  357. 
Illinois  Cent.  R.  R.  Co.  v.  Latimer  (111.), 

21  N.  E.  Rep.  7,  p.  188. 
Illinois  Central  R.  R.  Co.  v.  Reedy,  17 

111.  580,  p.  236. 
Illinois  Cent.  R.  R.  Co.  v.  Sutton,  42  111. 

438,  pp.  115, 116. 
Inge  v.  Murphy,  10  Ala.  (N.  S.)  885,  pp. 

201,  226. 
Inglebright  v.  Hammond,  19  Ohio,  337, 

p.  272. 

Ingraham  v.  Hart,  11  Ohio,  255,  p.  226. 
Innerarity  v.  Mitns,  1  Ala.  660,  p.  205. 
In  re  Will  of  Ames,  51  Iowa,  596,  p.  66. 
In  re Cliquot's  Champagne, 3 Wall. (U.S.) 

114,  p.  378. 
Ip  re  Fennerstein's  Champagne,  a  Wall. 

(U.  S.)  145,  p.  378. 

In  re  Will  of  Norman,  72  Iowa,  84,  p.  66. 
In  re  Ross,  87  N.  Y.  514,  p.  159. 
In  re  Springer,  4  Penn.  Law  J.  275,  p.  84. 
In  re  Todd,  19  Beav.  582,  p.  219. 
Insurance  Co.  v.  Mosley,  8  Wall.  3'.17,  p. 

116. 

International,  etc.  R.  R.  Co.  v.  Under- 
wood, 64  Tex.  464,  p.  183. 
In  the  Matter  of  Roelker,  1  Sprague, 

276,  pp.  430,  434. 
Irving  v.  McLean,  4  Blackf.  (Ind.)  52,  p. 

199. 

Irish  v.  Smith,  8  S.  &  R.  573,  p.  11. 
Isabella  v.  Pecot,  2  La.  Ann.  387,  p.  205. 
Ives  v.  Leonard,  50  Mich.  296,  p.  39. 

J. 
Jackson  v.  Armstrong,  50  Mich.  6">,  p. 

50. 


TABLE    OF    CASES    CITED. 


XXIX 


Jacksoii  v.  Deling,  22  La.  Ann.  377,  p.  272. 
Jackson  v.  Benson,  54  Iowa,  654,  p.  18. 
Jackson  v.  Edwards,  7  Paige  Ch.  (N.T.) 

386,  pp.  387,  392. 
Jackson  v.  Lambert,  121  Pa.  St.  182,  p. 

204. 
Jackson  v.  N.  Y.  Cent.  etc.  R.  R.  Co.,  2 

Sup.  Ct.  653,  p.  381. 
Jacob's  Case,  5  Jones,  259,  p.  177. 
James  v.  Bostwick,  Wright  (Ohio),  142, 

•274. 

James  v.  Hodsden,  47  Vt.  127,  p.  260. 
Jameson  v.  Drinkald,  12  Moore,  148,  pp. 

61,  230. 
Jarrett  v.  Jarrett,  11  W.  Va.  584>  pp. 

473,  481. 
Jarrett  v.  Furman,  25  Hun   (X.  Y.),  393, 

p.  372. 

Jasper  Co.  v.  Osborn,  59  Iowa,  208,  p.  6. 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend. 

72,  pp.  247,  249. 
Jeffersonyille  R.  R.  Co.  v.  Lanham,  27 

Ind.  171,  pp.  240,  280. 
Jenkins  v.  The  State,  82  Ala.  25,  p.  10. 
Jennings  v.  Prentice,  39  Mich.  421,  p. 

350. 

Jerry  v.  Townshend,  9  Md.  145,  p.  64. 
Jewell  v.  Center,  25  Ala.  498,  p.  196. 
Jewett  v.  Brooks,  134  Mass.  505,  p.  67. 
Jewett  v.  Draper,  6  Allen  (Mass.),  434,  p. 

303. 

Jevne  v.  Osgood,  57  111.  340,  p.  381. 
Joe  v.  State,  6  Fla.  591,  p.  136. 
Johns  v.  Thompson,  72  Ind.  167,  p.  445. 
Johnson's  Case,  67  X.  C.  58,  p.  177. 
Johnson  v.  Central  R.  R.  Co.,  56  Vt.  708, 

p.  123. 
Johnson  v.  Chambers,  12  Ind.   112,  p. 

199. 

Johnson  v.  Culver,  116  Ind.  278,  p.  158. 
Johnson  v.  McKee,  27  Mich.  471,  pp.  116, 

448. 
Johnson  v.  Mofflt,  19  Mo.  App.  159,  p. 

193. 

Johnson  v.  State,  2  Ind.  652,  p.  90. 
Johnson  v.  State,  20  Tex.  Ct.  of  App. 

178,  p.  137. 
Johnson  v.  Thompson,  72  Ind.  167,  p. 

378. 
Johnson    Harvester   Co.   v.    Clark,    31 

Minn.  165,  p.  357. 
Jonan  v.  Ferrand,  3  Rob.  (La.)  366,  pp. 

81,362. 

Jones  v.  Angell,  95  Ind.  376,  p.  149. 
Jones  v.  Finch,  37  Miss.  468,  p.  344. 
Jones  v.  Fuller,  19  S.  C.  66,  pp.  9,  368. 
Jones  v.  Knauss,  31  X.  J.  Eq.  609,  p.  448. 
Jones  v.  Laney,  2  Tex.  342,  pp.  198, 199. 
Jones  v.  Maffett,  5  S.  &    R.  523,  pp.  210, 

'.'IT. 


Jones  v.  State,  71  Ind.  66,  p.  31. 
Jones  v.  State,  11  Ind.  357,  p.  345. 
Jones  v.  The  Trustees,  etc.,  1  Smith,  47, 

p.  417. 
Jones  v.  Tucker,  41  X.  H.  546,  pp.  3,  20, 

22,  39,  64,  121. 
Jones  v.  Utica,  etc.  R.  R.  Co.,  40  Hun 

(X.  Y.),  349,  pp.  121, 122. 
Jones  v.  White,  11  Humph.  268,  p.  4,  99, 

121, 122. 

Jordan  v.  Osgood,  109  Mass.  457,  p.  280. 
Joseph  v.  Bank,  17  Kan.  256,  p.  328. 
Joyce  v.  Maine  Ins.  Co.,  45  Me.  169,  p.  249. 
Judah  v.  McXamee,  3  Blackf.  (Ind.)  269, 

p.  384. 
Jumpertz  v.  People,  21  111.  375,  pp.  325, 

328. 
Junction  R.  R.  Co.  v.  Bank  of  Ashland, 

12  Wall.  226,  p.  198. 
Jupitz  v.  People,  34  111.  516,  p.  260. 


Eannon  v.  Galloway,  2  Baxter,  231,  p. 

329. 
Kansas  City,  etc.  R.  R.  Co.  v.  Allen,  24 

Kan.  33,  p.  373. 
Kansas  City,  etc.  R.  R.  Co.  v.  Baird,  41 

Kan.  69,  p.  373. 
Kansas  City,  etc.  R.  R.  Co.  v.  Ehret,  41 

Kan.  22,  p.  373. 
Kansas    Pacific   R.  R.  Co.  v.  Miller,  2 

Colo.  442,  p.  10. 
Kansas,  etc.  R.  R.  Co.   v.  Peavey,  29 

Kan.  170,  p.  26. 

Keables  v.  Christie,  47  Mich.  144,  p.  353. 
Keator  v.  People,  32  Mich.  487,  p.  448. 
I  Keister  v.  Miller,  25  Pa.  St.  481,  p.  444. 
Keith  v.  Lothrop,  10  Gush.  (Mass.)  457. 

p.  83. 

Keith  v.  Tilford,  12  Xeb.  271, p.  264. 
Keithley  v.  Stafford,  126  111.  507,  p.  158. 
Keithsburg,  etc.  R.  R.  Co.  v.  Henry,  79 

111.  290,  pp.  373,  445. 
Keller  v.  X.  Y.  Cent.  R.  R.  Co.,  2  Abbott 

Court  of  App.  480.  p.  28,  60. 
Kelly's  Heirs  v.  McGuire,  15  Ark.  555,  p. 

158. 

Kelley  v.  Fon  du  Lac,  31  Wis.  179,  p.  14. 
Kelley  v.  Richardson,  69  Mich.  430,  436, 

pp.  2, 12,  381,  382. 

Kelly  v.  Emery,  75  Mich.  147,  p.  444. 
Kelly  v.  Erie  Telegraph  &  Telephone 

Co.,  31  Minn.  511,  p.  188. 
Kelly  v.  United  States,  27  Fed.  Rep.  616, 

p.  101. 
Kelly  v.  United  States,  8  Cr.  Law  Mag 

174,  p.  101. 
Kempsey  v.  McGinnis,  21  Mich.  123,  pp. 

165,  479. 
Kendall  v.  Gray,  2  Hilton  (X.  Y.) ,  302,  p. 

384. 


XXX 


TABLE    OF    CASES    CITED. 


Kendall  v.  May,  10  Allen  (Mass.),  59,  p. 

386. 
Kennedy  v.  Brown,  13  C.  B.  (X.  S.)  677, 

p.  380. 
Kennedy  v.  People,  39  N.  Y.  245,  pp.  131, 

132. 

Kennedy  v.  Upshaw,  64  Tex.  412,  p.  323. 
Kennett  v.  Fickle,  41  Kan.  211,  p.  364. 
Kenny  v.  Clarksou,  1  Johnson  (X.  Y.), 

385, p.  205. 
Kenney  v.  Van  Home,  1  Johns.  (N.  Y.) 

394,  p.  217. 
Kent  v.  Miltenberger,  15  Mo.  App.  480, 

p.  13. 
Kent   Furniture,  etc.  Co.  v.  Ransom,  46 

Mich.  416,  p.  380. 
Kent  v.  Town  of  Lincoln,  32   Vt.  592, 

116. 
Kermott  v.  Ayer,  11  Mich.  181,  pp.  209, 

388,  205. 

Kern  v.  Bridwell,  119  Ind.  226,  p.  185. 
Kern  v.  South  St.  Louis  Mutual  Ins.  Co., 

40  Mo.  19,  pp.  247,  249. 
Kernin  v.  Hill,  37  111.  209,  pp.  325,  328. 
Kerr  v.  Lunsford,  31  W.  Va.  669,  pp.  62, 

65,  66,  473. 
Kershaw  v.  Wright,  115  Mass.  361,  pp. 

271,  283. 
Kessel  v.  Albertis,  56  Barb.  (N.  Y.)  362, 

p.  197. 
Key  v.  Thompson,  2  Hannay   (N.  B.), 

224,  p.  63. 

Kibler  v.  Mcllwain,  16  S.'C.  550,  p.  88. 
Kilbourne  v.  Jenning,  38  Iowa,  533,  p. 

51. 

Kilgore  v.  Cross,  1  Fed.  Rep.  582,  p.  158. 
Kimbro  v.  Hamilton,  28  Tex.  560,  p.  446. 
King  v.  Donahue,  110  Mass.  155,  p.  340. 
King  v.  Missouri,  etc.  R.  Co.  (Mo.),  11  S. 

W.  Rep  563,  p.  13. 
King  v.  N.  Y.  Cent.  R.  R.  Co.,  72  N.Y.  607, 

pp.  10,  278. 

Kinley  v.  Crane,  34  Pa.  St.  146,  p.  254. 
Kinne  v.  King,  9  Conn.  102,  p.  169. 
Kinney  v.  FJynn,  2  R.  I.  319,  p.  329. 
Kipner  v.  Biehl,  28  Minn.  139,  p.  265. 
Kirkby  v.  Phoenix  Ins.  Co.,  9  Lea,  142,  p.  j 

249. 
Kirksey  v.  Kirksey,  41  Ala.  626,  pp.  310, 

318.  328,  344,  345. 

Kirahaw  v.  Wright,  115  Mass.  361,  p.  272. 
Kitteringbam  v.  The  Sioux  City,  etc.  R. 

R.  Co.,  62  Iowa,  285,  p.  17. 
Kline  v.  Bnker,  99  Mass.  253,  p.  226. 
Kline  v.  K.  C.,  St.  J.  etc.  R.  R.  Co.  v.  Lu- 
cas, 119  Ind  583,  p.  130. 
Kline  v.  K.  C.,  St.  J.  etc.  R.  R.  Co.,  50 

IowH,655,  p.  20. 
Knapp  v.  Abell,  10  Allen  (Mass.),  485,  p. 

199. 


Knoll  v.  State,  55  Wis.  249,  p.  141. 
Knowles  v.  People,  15  Mich.  4C8,  pp.  446, 

447. 

Knox  v.  Clark,  123  Mass.  216,  p.  254. 
Knox  v.  Wheelock,  56  Vt.  200,  p.  118. 
Kolsti  v.  Minneapolis,  etc.  R.  R.  Co.,  32 

Minn.  133,  p.  241. 
Koons  v.  State,  36  Ohio  St.  195,  pp.  322, 

330,  331,  333. 
Koous  v.  St.  Louis  &  Iron  Mountain  R. 

R.  Co.,  65  Mo.  592,  p.  6. 
Kopke  v.  People,  43  Mich.  41,  p.  209. 
Koster  v.  Noonan,  8  Daly  (N.  Y.),  232,  p. 

278. 
Krenziger  v.  Chicago,  etc.  R.  R.,  TA  Wis- 

158,  p.  404. 
Krippner  v.  Biebe,  28  Minn.  140,    pp.  20, 

40.  4-2. 
Kuhns  v.  Wisconsin,    etc.    R.  R.  Co.,  70 

Iowa,  561,  p.  242. 

L. 

L.  R.,  etc.  R.  R.  Co.,  47  Ark.  497,  p.  368. 
Lacon  v.  Higgins,  3  Starkie    (N.  P.),  178, 

p.  210. 
Laflin  v.  Chicago,  etc.  R.  R.  Co.,  33  Fed. 

Rep.  415,  p.  487. 
Lake  v.  People,   1   Parker   Cr.  Cas.  (N. 

Y.)  495,  pp.  58,  78,  122,  169,  495. 
La  Mere  v.  McHale,  30  Minn.  410,  pp.  422, 

423. 
Lamoure  v.  Caryl,  4  Denio  (N.  Y.),  373, 

pp.  357,  361. 
Lancaster  v.    Lancaster's    Trustees,  78 

Ky.  200,  p.  387. 
Lands  v.  Lands,  1  Grant  (Penn.),  248,  p- 

170. 
Lane  v.  Wilcox,  55  Barb.  (N.  Y.)   615,   p. 

266. 
Lanning   v.    Chicago,    etc.    Ry.    Co.,  68 

Iowa,  502,  p.  349. 
Lapham    v.    Atlas    Ins.  Co.,    24    Pick. 

(Mass.)  1,  p.  231. 
Laros  v.  Commonwealth,  84  Pa.  St.  200, 

pp.  41,86. 

Lattimore  v.  Elgin,  4  Dess.  26,  p.  201. 
Laughlin  v.  State,  18  Ohio,  99,  p.  90. 
Laughlin  v.  Street  R.  R.  Co.,  62  Mich. 

220,  pp.  14,  490. 

Lawrence  v.  Boston,  119  Mass.  126,  p.  40. 
Lawrence  v  Dana,  4  Clifford,  1,  72,  p. 

271. 

Lawrence  v.  Hudson,  59  Tenn.  671,  p.  6. 
Lawson  v.  Chicago,  etc.  R.  R.  Co.,  64 

Wis.  447,  p.  14. 
Lawton  v.  Chase,  180  Mass.  238,  pp.  40, 

357. 

Layton  v.  Chalon,  4  La.  Ann.  318,  p.  214. 
Leache  v.  The  State,  22  Tex.  App.  279, 

pp.  66,  84. 


TABLE    OF    CASES    CITED. 


XXXI 


Leary  v.  Woodruff,  76  X.  Y.  617,  p.  235.- 
Leathers    v.    Salver   Wrecking    Co.,   2 

Wood,  680,  p.  336. 
Leavenworth,  etc.  R.  R.  Co.  v.  Paul,  28 

Kan.  816,  p.  369. 
Leber  v.  Minnesota,  etc.  R.  It.  Co.,  29 

Minn.  256,  p.  370. 
Ledbetter  v.  State,  21  Tex.  App.  344,  p. 

446. 

Lee  v.  Mathews,  10  Ala.  682,  p.  205. 
Legg  v.  Drake,  1  Ohio  St.  286,  p.  416. 
Legg  v.  Legg,  8  Mass.  99,  p.  199. 
Lehigh  Vail.  Coal  Co.  v.  City  of  Chicago, 

26  Fed.  Rep.  415,  p.  490. 
Lehmicke  v.  St.  Paul,  etc.  R.  R.  Co.,  19 

Minn.  464,  pp.  350,  370,  373,  375. 
Leitch  v.  Atlantic  Mut.  Ins.  Co.,  66  N.  Y. 

100,  pp.  248,  253. 

Leitensdorfer  v.  King,  7  Col.  436,  p.  487. 
Leopold  v.  Van  Kirk,  29  Wis.  548,  pp.  84, 

282. 
Leroy,  etc.  R.  R.  Co.  v.  Hawk,  39  Kan. 

633,  p.  373. 
Lessee  of  Hoge  v.  Fisher,  1  Pet.  C.  C. 

164,  pp.  162,  480. 
Lessee  of  Forbes  v.  Caruthers,  3  Yeates, 

5-27,  p.  4. 

Lester  v.  Pitsford,  7  Vt.  158,  p.  20. 
Lewis  v.  Brown,  41  Me.  448,  p.  6. 
Lewis  v.  Burlington  Ins.  Co.,  71  Iowa, 

97,  p.  366. 

Lewis  v.  Christie,  99  Ind.  377,  p.  448. 
Lincoln  v.  Inhabitants  of  Barre,  5  Cush. 

591,  pp   39,  43,  255. 

Lincoln  v.  Battelle,  6  Wend.  (X.Y.)  475, 

p.  205. 
Lincoln  v.  Saratoga,  etc.  R.  R.  Co.,  23 

Wend.  425,  pp.  20,  25, 122,  351,  367. 
Lincoln  v.  T-tunton  Manufacturing  Co., 

9  Allen  (Mass  ),  182,  pp.  83, 146. 
Lindauer  v.  Delaware  Mut.  Ins.  Co.,  13 

Ark.  462,  p.  18. 

Lindsay  v.  People,  63  N.  Y.  143,  p.  131. 
Lindsley  v.  Chicago,  etc.  R.  R.  Co.,  36 

Minn.  540,  p.  242. 
Line  v.  Mack,  14  Ind.  330,  p.  2C5. 
Linsley  v.  Lovely,  26  Vt.  123,  p.  88. 
Linton  v.  Hurley,  14  Gray  (Mass.),  191, 

p.  121. 
Lipscombe  v.  Holmes,  2  Camp,  441,  p. 

384. 

Little  v.  Beazley,  2  Ala.  210,  p.  328. 
Littledale  v.  Dixon,  1  Bos.  &  Pul.  151,  p. 

247. 
Little  Rock,  etc.  R.  R.  Co.  v.  Haynes,  47 

Ark.  497,  p.  367. 
Liverpool,  etc.  Ins.  Co.  v.  McGuire,  52 

Miss.  227,  p.  249. 
Livingston  v.  Commonwealth,  14  Gratt. 

592,  pp.  58,  99,  118,  130. 


Livingston     v.   Maryland   Ins.    Co.,  6 

Cranch,  274,  p  213. 
Locker  v.  Sioux  City,  etc.  R.  R.  Co.,  46 

Iowa,  109,  p.  333. 

Lockhart  v.  Dewees,  1  Tex.  635,  p.  272. 
Lockwood  v.  Crawford,  18  Conn.  861,  p. 

226. 

Logan  v.  McGinn  is,  12  Pa.  St.  27,  p.  156. 
Lombard,  etc.  R.  R.  Co.  v.  Christian,  124 

Pa.  St.  114,  p.  192. 

Lonergan  v.  Royal   Exchange  Assur- 
ance, 7  Bing.  725,  p.  439. 
Long  v.  Davidson,  101  X.  C.  175,  p.  274. 
Long  v.  Little,  119  111.  600,  p.  286. 
Looper  v.  Bell,  1  Head    (Tenn.),  373,  p. 

116. 

Lord  v.  Beard,  79  N.  C.  5,  p.  167. 
Loucks  v.  Chicago,  etc.  R.  R.  Co.,  31 

Minn.  526,  p.  77. 
Louisville,  etc.    R.  R.  Co.  v.  Cox,  30  111. 

App.  Ct.  380,  p.  361. 
Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104 

Ind.  409,  pp.  66,  67,  74,  80,  82, 115. 
Louisville,  etc.   R.  R.  Co.  v.  Lucas,  119 

Ind.  583,  p.  122. 
Louisville,  etc.  R.  R.  Co.  v.  Shires,  108 

111.  617,  pp.  113,  122,  239. 
Louisville,  etc.   R.  R.  Co.  v.  Snyder,  117 

Ind  435,  pp.  115, 188. 
Louisville,  etc.  R.  R.  Co.  v.   Wood,  113 

Ind.  544,  pp.  11, 169. 
Lovejoy  v.  U.  S.,  128  U.  S.  171,  p.  445. 
Lovelady  v.  State,  14  Tex.  Ct.  App.  345, 

p.  65. 
Lowe  v.  Connecticut,  etc.  R.  R.  Co.,  45 

N.  H.  370,  p.  352. 
Lowell  v.  County  Commissioners,  146 

Mass.  403,  pp.  65,  349. 
Loyd  v.  Hannibal,  etc.  R.  R.  Co.,  53  Mo. 

509,  p   184. 

Luce  v.  Dorchester  Ins.  Co.  105  Mass. 

297,  p.  247,  250. 
Ludlow  v.  Warshlng,  108  N.  Y.  520,  p. 

303. 
Luning  v.  State,  1  Chandler,  178,  pp.  62, 

404. 

Luse  v.  Jones,  39  N.  J.  Law,  708,  p.  357. 
Lush  v.  Druse,  4  Wend.   (N.  Y.)   317,  p. 

378. 
Lush  v.  McDaniel,  13  Ired.   (N.  C.)  485, 

pp.  121, 191. 
Lyon  v.  Lyman,  9  Conn.  56,  pp.  297,  329. 

M. 

Macer  v.  Third  Ave.  R.  R.  Co.,  47  N.  Y. 

Sup.  Ct  461,  p.  130. 
Machin  v.  Griudon,  2  Cas.  Temp.  Leg. 

335,  p.  310. 
Maclean  v.  Scripps,  *2  Mich.  214,  p.  335. 


XXX 11 


TABLE    OF    CASES    CITED. 


Macomber  v.  Scott,  10  Kan.  339,  pp.  224, 

320,328. 
Macon,  etc.  R.  R.  Co.  v.  Johnson,  38  Ga. 

409,  p.  236. 
Maddox  v.  Fisher,  14  Moore  P.  C.  103,  p. 

197. 
Magee  v.  City  of  Troy,  48  Hun   (N.  Y.), 

383,  p.  122. 
Maher  v.  Atlantic,  etc.  R.  R.  Co.,  64  Mo. 

267,  p.  237. 
Malcolmson  v.  Morton,  11  Irish  L.R.  230, 

(Q.  B.)  p.  271. 

Male  v.  Roberts,  3  Esp.  163,  p.  198. 
Manke  v.  People,  24  Hun  (X.  Y.),  316,  p. 

31. 

Manke  v.  People,  78  X.  Y.  611,  p.  31. 
Mansfield  Coal  Co.  v.  McEnery,  91  Pa. 

St.  185,  p.  87. 
Mantel  v.   Chicago,  etc.  R.  R.  Co.  33 

Minn.  6265,  p.  15. 
Manufacturers,  etc.  v.  Koch,  105  N.  Y. 

630,  p.  18. 
Marcott  v.  Marquette,  etc.,  R.  R.  Co.,  49 

Mich.  99,  p.  238. 
Marcy  v.  Barnes,  16  Gray,  160,  pp.  57, 

336. 
Marcy  v.  Sun  Ins.Co.,  11  La.  Ann.  748,  p. 

234. 

Marion  v.  State,  20  Neb.  233,  p.  333. 
Mark  v.  City  of  Buffalo,  87  N.  Y.  184,  p. 

442. 
Marshall  v.  Columbia,  etc.  Ins.  Co.,  7 

Foster  (N.  H.),  157,  pp.  20,  352. 
Marshall  v.  Brown,  60  Mich.  148,  pp.  402, 

410. 

Marshall  v.  State,  49  Ala.  21,  p.  10. 
Marshall  v.  Union  Ins.  Co.  2  Wash.  C.C. 

357,  p.  247. 
Martin  v.  Franklin  Fire  Ins.Co.,  42  N.  J. 

Law,  46.  p.  250. 

Martin  v.  Maguire,  7  Gray,  177,  p.  331. 
Mascheck  v.  St.  Louis,  R.  R.  Co.,  1  Mo. 

App.  600,  p.  6. 

Mason  v.  Fuller,  45  Vt.  29,  pp.  105, 155. 
Mason,  etc.  R.  R.  Co.  v.  Johnson,  38  Qa. 

409,  p.  240. 

Mason  v.  Phelps,  48  Mich.  127,  p.  41. 
Mason  v.  Wash,  Breese  (111.),  39, p.  199. 
Massachusetts  Life  Ins.  Co.  v.  Eshel- 

man,  30  Ohio  St.  647,  p.  6. 
Massey  v.  Bank,  104.  111.  327,  pp.  325,  328, 

342. 

Mastens  v.  Mastens,  1  P.  Wm.  425,  p.  302. 
Mather  v.  Coleman,  111  N.  Y.  220,  p.  110. 
Matter  of  Darragh,  52  Hun,  693,  p.  106. 
Matter  of  Foster's  Will,  34  Mich.  21,  pp. 

335,  462. 
Matter  v.  Klock,  49  Hun  (X.  Y.),  450,  p. 

159. 


Matter  of  Foster's  Will,  34  Mich.  21,  p. 

328. 
Matter  of  N.Y.  etc.  R.  R.  Co.,  29  Hun, 

609,  p.  370. 
Matter  of  Utica,  etc.  R.  R.  Co.,  56  Barb. 

456, p.  370. 
Matteson  v.  New  York  Cent.  R.R.Co.,  35 

N.  Y.  487,  pp.  116,  122, 188. 
Matteson  v.  N.  Y.  ecc.  R.  R.  Co.  62  Barb. 

(N.  Y.)  364,  p.  121. 

Matteson  v.  State,  55  Ala.  224,  p.  12. 
May  v.  Bradlee,  127  Mass.  414,  pp.  81, 159. 
May  v.  Dorsett,  30  Ga.  116,  p.  345. 
Mayhew  v.  Sullivan  Mining  Co.,  76  Me. 

100,  p.  26. 
Mayo  v.  Wright,  63  Mich.  32,  pp.  116, 149, 

150. 
Mayor,  etc.  v.  O'Neill,  1  Pa.  St.  342,  p. 

278. 

McAdory  v.  State,  59  Ala.  92,  p.  6. 
McAllister  v.  State,  17  Ala.  435,  pp.  162, 

169,  486. 

McClackey  v.  State,  5  Tex.  Ct.  of  App. 

320,  pp.  157, 160. 
McClain  v.  Brooklyn  City  R.  R.  Co.,  116 

N.  Y.  459,  pp.  121, 122, 123. 
McCllntock  v.  Card,  32  Mo.  411,  pp.  81, 

165. 

McCollum  v.  Seward,  62  N.  Y.  376,  p.  71. 
McCormic  v.  Hamilton,  23  Gratt.   (Va) 

661, p.  267. 
McCraney  v.  Alden,  46  Barb.  (X.  Y.)  274, 

p.  198. 

McCreary  v.  Turk,  29  Ala.  244,  p.  235. 
McDeed  v.  McDeed,  67  111.  545,  p.  205. 
McDonald  v.  Chicago,  etc.  R.R.,  26  Iowa, 

124, p.  392. 
Me  Dougald  v.  McLean,  1  Winston   (X. 

C.)  Law,  120,  p.  158. 
McEwen  v.  Bigelow,  40  Mich.  217,  pp.  39, 

44,53. 
McKadden  v.  Murdock,  1  Irish  R.  (C.L.) 

211,  pp.  357,  451. 

McGill  v.  Rowand,  3  Pa.  St.  452,  p.  353. 
McGowan  v.  Am.  Tan  Bank  Co.,    121  U. 

S.  575,  p.  490. 

Mclntosh  v.  Lee,  57  Iowa,  358,  p.  394. 
Me  Kay  v.  Lasher,  42  Hun  (X. Y.) , 270, pp . 

311,  316. 
MeKee  v.  Xelson,  4  Cowen  (X.Y.),  355, p. 

11. 

McKee  v.  State,  82  Ala.  32,  pp.  126, 131. 
McKeone  v.  Barnes,  108  Mass.  344,  pp. 

303,  332. 
McKeigue  v.  City  of  Janesvllle,  68  Wis. 

59,  p.  392. 
McKnight  v.  State,  6  Tex.  Ct.  of  App. 

162,  p.  6. 
McLanahan  v.  Universal  Ins.  Co.,  1  Pet. 

170,  pp.  233,  247 


TABLE    OF    CASES    CITED. 


XXX111 


McLean  v.  State,  16  Ala.  672,  pp.  90, 169. 
McLeary  v.  Morment,  84  N.  C.  235,  p.  158. 
McLeod  v.  Bullard,  b4  X.  C.  515,  p.  303. 
McLeoU  v.  Lee,  17  Nevada,  103,  p.  15. 
McMahon  v.  Tyng,  14  Allen,  167,  p.  270. 
McMcchen  v.  McMechen,  etc.  B.  R.  Co., 

17  \V.  Va.  683,  pp.  (12,  73. 
McNair  v.  National  Life  Ins.  Co., 20  X.Y. 

Sup.  Ct.  146,  p.  120. 
McNaughten's  Case,  10  C.  &  F.  200,  pp. 

77,166. 
McNeill  v.  Arnold,  17  Ark.   154,  pp.  205, 

214. 

McPeters  v.  Ray,  85  N.  C.  462,  p.  350. 
McPherrin  v.  Jennings,  66  Iowa,  622,  p. 

194. 
McPherson  v.  St.  Louis,  etc.  R.  R.  Co., 97 

Mo.  253,  p.  13. 
McRae  v.  Malloy,  93  X.  X.  C.  154,  pp.  11, 

157. 

McRae  v.  Mattoon,  13  P2ck.  87,  p.  201. 
Mead  v.  Northwestern  Ins.  Co.,  SSelden 

(X.Y.),  530,  p.  262 ;     S.  C.,  3  Bennett's 
Fire  Ins.  Co.  Cas.   483,  p.  262. 
Meeker  v.  Meeker,  74  Iowa,  352,  p.  66. 
Melendy  V.  Spaulding,  54  Vt.  617,  p.  165. 
Melvin  v.  Easley,  1  Jones'  Law,  388,  pp. 

47,  403. 

Melvin  v.  Hodges,  71  111.  422,  p.  325. 
Mendum  v.  Commonwealth,   6    Rand. 

(Va.)  704,  pp.  41, 124. 
Merchants'  Ins.  Co.  v.  Dwyer,  1  Posey 

(Tex.),  441,  p.  249. 
Merkle  v.  Bennington,  68  Mich.  133,  143, 

•    p.  14. 

Merkle  v.  State,  37  Ala.  139,  p  398. 
Merriam  v.  Middlesex    Ins.  Co.,  21  Pick. 

162, p.  250. 
Merrill  v.  Dawson,  Hempstead,  563,  p. 

198. 

Merritt  v.  Merritt,  20  111.  65,  p.  201. 
Merritt  v.  Seaman,  6  N.  Y.  168,  p.  6. 
Mertz  v.  Detweiler,  8  W.  &  S.   (Pa.)    376» 

pp.  149,  384. 
Messer  v.  Reginnitter,  32  Iowa,  312,  p. 

254. 
Miami,  etc.  R.  R.  Co.  v.   Bailey,  37  Ohio 

St.  104,  p.  Ib3. 
Middlebury  Coll.  v.  Cheney,  1  Vt.  348,  p. 

199. 
Midclleton  v.  Janverin,  2  Hag.  Cons.  R. 

437, p.  210. 
Middlings  Purifier  Co.  v.  Christian,  4 

Dillon,  443.  p.  448. 
Miles  v.  Loomis,  75  N.  Y.  288,  pp.  286,287, 

294,  299,  321,  328. 

Millar  v.  Heinrick,  4  Camp.  155,  p.  202. 
Miller  v.  Johnson,  27  Md.  6,  pp.  325,  328, 

336. 
Miller  v.  Shay,  14  Mass.  598,  p.  263. 


Miller  v.  Jones,  32  Ark.  338,  pp.  318,  338. 
Miller  v.  Smith,  112  Mass.  470,  pp.  58,  359. 
Miller  v.  Stevens,  100  Mass.  518,  p.  27'.. 
Mills  v.  Winter,  94  Ind.  329,  p.  11. 
Milton  v.  Rowland,  11  Ala.  732,  p.  190. 
Milwaukee,  etc.  R.  R.    Co.  v.  Eble,    4 

Chand.  (Wis.),  72,  p.  373. 
Milwaukee,  etc.  R.  R.  Co.  v.  Kellogg,  94 

U.  8.  469,  pp.  15,  20,  247.  249. 
Milwaukee  &  St.  Paul  R.  R.  Co.  v.  Smith, 

74  111.  197,  p.  217. 

Mims  v.  Swartz,  37  Tex.  13,  p.  198. 
Minnesota  Central  R.  R.  Co.  v.  Morgan, 

52  Barb.  (N.  Y.)  217,  p.  272. 
Mish  v.  Wood,  34  Pa  St.  461,  pp.  20,  353. 

359. 
Missouri,  etc.  R.  R.  Co.  v.  Finley,38"Kan. 

550,  pp.  50,  99,  193, 194. 
Missouri  Pacific,  etc.  R.  R.  Co.  v.  John- 
son, 72  Tex.  95,  pp.  183, 186. 
Missouri,  etc.  R.   R.  Co.  v.  Mackey,  33 

Kan  299,  p.  33. 

Mitchell  v.  Allison,  29  Ind.  43,  p.  367. 
Mitchell  v.  Home  Ins.  Co.,  32  Iowa,  424, 

pp.  247,  249. 
Mitchell  v.  State,  58  Ala.  418,  pp.  119, 135, 

445. 

Mixer  v.  Bennett,  70  Iowa,  329,  p.  311. 
Moale  v.  Baltimore,  5  Md.  314,  p.  375. 
Mobile,  etc.  R.  R.  Co.  v.  Blakely,  59  Ala. 

471,  p.  238. 
Mobile,  etc.  R.  R.  Co.  v. Whitney,  39  Ala. 

468,  p.  199. 

Mock  v.  Kelly,  3  Ala.  387,  p.  384. 
Molina  v.  United  States,  6  Ct.  of  Cl.  269, 

p.  222. 

Moller  v.  Moller,  115  X.  Y.  468,  p.  447. 
Monroe  v.  Douglas,  5  N.  Y.  447,  p.  198. 
Monroe  v.  Lattin,  25  Kan.  351,  pp.  16,  20, 

25. 

Monghon  v.  State,  57  Ga.  102,  p.  282. 
Monongahela  Water  Co.  v.  Stewartson, 

%  Pa.  St.  436,  pp.  45, 192. 
Montgomery  v.  Commonwealth,  11  S. 

W.  Rep.  475,  p.  163. 
Montgomery  v.  Dealey,  3  Wis.  709,  p. 

198. 
Montgomery  v.  Gilmer,  33  Ala.  116,  p. 

p.  263. 
Montgomery  v.  Town  of  Scott,  34  Wis. 

338,  pp.  6,  3-2,  130. 
Montgomery,  etc.  R.  R.  Co.  v.    Varner, 

19  Ala.  185,  p.  369. 
Moody  v.  Rowell,  17  Pick.   (Mass.)   490, 

pp.  294,  298,  299,  329. 
Moody  v.  Russell,  4  Gray,  167,  p.  320. 
Moore  Y.  Chicago,  etc.   R.    R.    Co.,  66 

Iowa,  505,  p.  242. 
Moore  v.  Crowder,  72  Ala.  79,  318,  pp. 

286,318.  (C) 


XXXIV 


TABLE    OF    CASES    CITED. 


Moore  v.  Gwyn,  5  Ired.  (N.  C  )  187,  p.  226. 
Moore  v.  Haviland   (Vermont),   17  Atl. 

Rep.  725,  p.  194. 

Moore  v.  Lea's  Admr.  32  Ala.  375,  p.  269. 
Moore  v.  State,  17  Ohio  St.  526,  pp.  64, 

12-2. 
Moore  v.  Township  of    Kenockee,    75 

Mich.  382,  343,  p.  363. 
Moere  v.  United  States,  91  U.  S.  271,  pp. 

323,329. 
Moore  v.  Westervelt,  9  Bos.  (N.  Y.)  559, 

p.  232. 
Moreland  v.  Mitchell  County,  40  Iowa, 

401,  pp.  267,  281. 
Morewood  v.  Wood,  14  East,  327,  note  a, 

p.  310. 

Morrill  Y.  Tegtirdeu,  19  Neb.  534,  p.  66. 
Moore  v.  Crowder,  72  Ala.  79,  p.  286. 
Mooneyv.  Lloyd,  5  S.  &  R.   (Penn.)  416, 

p.  384. 

Moons  v.  Crowder,  72  Ala.  79,  p.  311. 
Morris  v.  Crowder,  72  Ala.  79,  p.  328. 
Morris  v.  Davidson,  49  Ga.  361,  p.  197. 
Mori  is  v.  East  Haven,  41  Conn.  252,  p. 

16. 

Morris  v.  Lachman,  68  Cal.  109,  446. 
Morris  v.  Morris, 119  Ind.  341,  pp.109, 110. 
Morrison  ?.  Porter,  35  Minn.  425,  p.  321. 
Morrison  v.  Watson,  Nil  N.  C.  338,  p.  377. 
Morrissey  v  Ingraham,  111  Mass.  63,  p. 

122. 
Morrissey  v.  Wiggins  Ferry  Co.,  47  Mo. 

521, p.  199. 

Morse  v.  Crawford,  17  Vt.  499,  p.  158. 
Morse  v.  The  State,  6  Conn.  9,  p.  10. 
Moser  v.  Cochrane,  107  N.  Y.  35,  p.  18. 
Moses  v.  Delaware  Ins.  Co.,  1  Wash.  C. 

C.  385,  pp.  247,  250. 

Mostyn  v.  Farrigas,  Cowp.  174,  p.  198. 
Mott  v.  Hudson,  etc.   R.  B.  Co.,  8  Bos. 

(N.  Y.)  345,  p.  241. 

Moulton  v.  McOwen,  103  Mass.  587,  p.  261. 
Mowry  v.  Chase,  100  Mass.  79,  pp.  214, 

227. 
Moye  v.  Herndon,  30  Miss.  118,  pp.  301, 

452. 
Moyer  v.  N.  Y.  Central,  etc.  R.  R.  Co.,  98 

X.  Y.  646,  pp.  15,  35,  253. 
Mudd  v.  Suckermore,  5  Ad.  &  Ell.  703,  p. 

288. 
Mulcairns  v.  Janesville,  67  Wls.  24,  p. 

392. 
Muldowney  v.  111.  Cent.  R.  R.   Co.,  36 

Iowa,  472,  pp.  23,  28,  61,  67. 
Mulny  v.  Mohawk  Valley  Ins  Co.,  5  Gray 

(Mass.),  645,  p.  249. 
Murphy  v.  Hagerman,  Wright  (Ohio), 

293,  p.  297. 
Murphy  v.  N.  Y.,  etc.  R.  R.  Co.,  66  Barb. 

1-25,  p.  238. 


Munshower  v.  State,  55  Md.  11,  p.  393. 
Mutual  Life  Ins.  Co.  v.  Bratt,55  Md.  200, 

p.  402. 
Mut.  Benefit  Life  Ins.  Co.  v.  Brown,  30 

N.  J.  Eq.  193,  p.  461. 
Myers  v.  Murphy,  60  Ind.  282,  p.  280. 
Myers  v.  State,  84  Ala.  11,  p.  118. 


Napier   v.  Ferguson,  2   P.  &  B.    (New 

Bruns.)  415,  pp.  121,  122,  Ib7. 
Nashville,  etc.  R.  R.  Co.  v.  Carroll,  53 

Tenn.  347.  p.  25. 
National  Bank  v.  Armstrong,  G6  Md.  113, 

pp.  280,  326. 
Naughton  v.  Stagg,4  Mo.  App.  27,  pp.  25, 

40. 

;  Nave  v.  Tucker,  70  Ind.  15,  p.  66. 
Nave's  Admr.  v.   Williams,  22  Ind.  368, 

p.  278. 

Needharn  v.  Ide,  5  Pick.  510,  p.  156. 
Neilson  v.  Chicago,  etc.   R.   R.   Uo.,58 

Wis.  576,  pp.  26,  370. 
Nelson  v.  Bridport,  8  Beav.  527,  pp.  198, 

223. 

Nelson  v.  Harrington,  72  Wis.  591,  p.  149. 
Nelson  v.  Johnson,  18  Ind,  329,  p.  301. 
Nelson  v.  Sun  Mut.  Ins.  Co. ,71  N.  V.  453, 

pp.  3.  39,  274,  276. 

Nelson  v.  Wood,  62  Ala.  175,  p.  283. 
Nevarro  v.  State,  24  Tex.  App.  378,  p.  154. 
New  Albany,  etc.   R.  R.  Co.   v.  Huff,  19 

Ind.  315,  pp.  6,  369. 
New  England  Glass  Co.  v.  Lovell,  7  Gush. 

319,  pp.  21,  25,230. 
Newell  v.  Newell,  9  Paige,  26,  pp.  172, 173, 

174,  175, 176. 
Newhall  v.  Appleton,  114  N.  Y.   140,  p. 

274. 
Newmark  v.  Liverpool,  etc.   Ins  Co.,  30 

Mo.  165,  p.  20. 
New  Orleans,  etc.  R.  R.  Co.  v.  Allbrit 

ton,  38  Miss.  242,  p.  100,  380. 
Newton  v.  Cocke,  10  Ark.  169,  p.  Ib9. 
Newton  v.  State,  21  Fla.  56,  pp.  119,  121, 

453. 
Niagara  Fire  Ins.  Co.  v.  Greene,  77  Ind. 

590,  p.  251. 

Nicholas  v.  Gould,  2  Vesey,  423,  p.  387. 
Nicholas  v.  Kershner,  20  W.  Va.  251,  p. 

473. 
Noblesville,  etc.  R.  R.  Co.  v.  Gause,  76 

Ind.  142,  pp.  122, 130. 
!  Nolin  v.  Palmer,  21  Ala.  66,  p.  256. 
>  Noon  an  v.  Ilsley,  22  Wis.  27,  p.  388. 
j  Noonan  v.  State,  55  Mo.  258,  p.  153. 
Norman  v.  Morell,  4  Vesey  Ch.  768,  pp. 

297,  301. 
Norman  v.  Wells,  17   Wend.  136,  pp.  18, 

20,  367. 


TABLE    OF    CASES    CITED. 


XXXV 


Norment  v.  Fabtnaght,  1  McArthur,  515, 

p.  255. 
North  Missouri  R.  U.  Co.  v.  Akens,  4 

Kan.  453,  p.  268. 
Northeast,  etc.   R.  R.  Co.  v.  Frazier,  25 

Neb.  53,  pp.  370,  373. 
Northern  Bank  v.  Buford,  1  Duval,  335, 

p.  328. 
Northwest  Fuel  Co.  v.  Mahler,  36  Minn. 

166,  p.  349. 

Norton  v.  Moore,  40  Tenn.  483,  p.  190. 
Norton  v.  Seton,  3  Phillimore,  147,  p. 

172. 
Norwood  v.  Morrow,  4  Dev.  &  Batt.  442, 

p.  16'J. 
Nowell  v.  Wright,  3  Allen    (Miss.),  166, 

p.  33. 

Nunes  v.  Perry,  113  Mass.  276,  pp.  55,  331. 
Nutter  v.  Boston,  etc.  R.  R.  Co.,  60 N.  H 

483, p.  245. 


0. 


O'Brien  v.  People,  36  N.  Y.  276,  p.  159. 
Ogden  v.  Parsons,  23  How.  167,  p.  231. 
O'Hara  v.  Wells,  14  Neb.  403,  p.  66. 
Ohio,  etc.  R.  R.  Co.  v.  Nickless,  71  Ind. 

271,  p.  367. 

Oleson  v.  Talford,  37  Wis.  327,  pp.  16,  32. 
Olmstead  v.  Gere,  100  Pa.  St.  127,  pp.  99, 

149. 
O'Mara  v.  Commonwealth,  75  Pa.  St.  424, 

p.  187. 
Oruisby  v.  Ihmsen,  34  Pa.  St.  462,  p. 

255. 

Orr  v.  Mayor,  etc.,  64  Barb.  106,  p.  359. 
Ort  v.  Fowler,  31  Kan.  478,  pp.  295,  320. 
Osborne  v.  Hosier,  6  Mod.  167,  p.  340. 
Osborne  v.  Marks,  33  Minn.  56,  p.  363. 
Otey  v.  Hoyt,  3  Jones,  407,  p.  322. 
Otey  v.  Hoyt,  2  Jones  (N.  C.  Law),  70,  p. 

308. 

Ott  v.  Soulard,  9  Mo.  581,  p.  197. 
Ottawa,  etc.  R.  R.  Co.  v.  Adolph,41  Kan. 

600,  p.  369. 
Ottawa  Gas,  etc.  Co.  v.  Graham,  28  111. 

73,  p.  487. 
Ottawa  University  v.  Parkinson,  14  Kan. 

159,  pp.  381,  382. 
Owen  v.  Boyle,  15  Me.  147,  pp.  197, 198, 

201. 

Owings  v.  Hull,  9  Pet.  607,  p.  198. 
Outlaw  v.  Hurdle,  1  Jones,  150,  p.  322. 


P. 


P v.  L ,  3  Prob.  Div.  (L.  R.)  73 

note  2,  p.  176. 
Paddock  v.  Commonwealth    Ins.  Co., 

104  Mass.  521,  p.  232. 


Page  v.  Hazard,  5  Hill  (N.  Y.),603,  p.  354. 

Page  v.  Parker,  40  N.  H.  59,  p.  20. 

Page  v.  State,  61  Ala.  16,  pp.  64,  75,  125, 

130. 

Page  v.  Wells,  37  Mich.  415,  p.  376. 
Paige  v.  Hazard,  5  Hill,  603,  pp.  232,  236. 
Paine  v.  Boston,  4  Allen,  168,  p.  349. 
Paine  v.  Schenectady  Ins.  Co.,  11   R.  I. 

411,  p.  200. 
Pannellv.  Common  wealth,  86  Pa.  St.  260, 

p.  445. 

Papin  v.  Ryan,  32  Mo.  21.  p.  197. 
Parker  v.  Boston    Steamboat  Co  ,  109, 

Mass.  449,  p.  189. 

Parker  v.  Enslow,  102  111.  272,  p.  184. 
Parker's  Heirs  v.  Parker's  Admr.,  33  Afar, 

459,  p.  378. 

Parker  v.  Johnson,  25  Ga.  583,  p.  460. 
Parkinson  V.  Atkinson,  31  L.  J.  (N.  8.) 

C.  P.  199,  p.  439. 
Parkhurst  v.  Hosford,  21  Fed.  Rep.  827, 

p.  158. 
Parkhurst  v.  Masteller,  57  Iowa,  476,  p. 

13. 
Parnell  v.  Commonwealth,  86  Pa.  St.      v 

260,  p.  473. 
Parsons  Water  Co.  v.  Knapp,  33  Kan. 

752,  p.  369. 
Parsons  v.  Manf.  etc.  Ins.  .Co.,  16  Gray, 

463,  p.  230. 

Parsons  v.  McDaniel,  62  Ga.  100,  p.  288. 
Parsons  v.  Parsons,  66  Iowa,  754,  p.  11. 
Partridge  v.  Insurance  (Jo.,  15  Wall,  375, 

p.'271. 
Passmore  v.  Passmore's  Estate, 60  Mich. 

463,  p.  490. 
Patchin  v.  Astor  Mut.  Ins.  Co.,  13  N.  Y. 

268,  p.  230. 
Pate  v.  People,  3  Gilm.   (111.)  644,  pp. 

297,  300. 
Patten  v.  United  States,  15  Ct.of  Cl.  288, 

p.  354. 

Patten  v.  Wiggen,  51  Me.  695,  p.  148. 
Patterson  v.  Boston,  20   Pick.    (Mass.) 

158,  p.  487. 
Patterson  v.Colebrook,  9 Foster  (N.H.), 

94,  p.  6,  446. 
Parey  v.  Pavey,  36  Ohio  St.  600,  pp.  330, 

331,  332. 

Payson  v.  Everett,  12  Minn.  216,  p.  344. 
Peck  v.  Callaghan,  95  N.  Y.  73,  pp.315, 

322. 

Peck  v.  Hibbard.  26  Vt.  698,  pp.  200,  213. 
Peer  v.  Ryan,  54  Mich.  224,  p.  193. 
Pelamourges  v.  Clark,  9  Iowa,  1,  pp.  11,. 

16,  20,  61. 
Penn  Mut.  Life  Ins.  Co.  v.Wiler.lOOInd. 

102,  p.  112. 

Pennsylvania,  etc.  R.  R.  Co.  v.  Bunnell  , 
81  Pa.  St.  426,  pp.  31 1,  373. 


XXXVI 


TABLE    OF    CASES    CITED. 


Pennsylvania,  etc.  K.  R.  Co.  v.   Cleary, 

125  Pa.  St.  443,  p.  376. 
Pennsylvania  Co.  v.Oonnell,  127  III.  419, 

p.  18. 
Pennsylvania  Coal  Co.  v.  Conlun,  101 

111.  93,  pp.  26,  243. 
Pennsylvania  R.  R.  Co.  v.   Henderson, 

51  P.  St.  320,  p.  388. 
People  v.  Angsbury,  97  N.  Y.  501,  pp.  66, 

80. 

People  v.  Arnold,  40  Mich.  710,  p.  89. 
People  v.  Badger,  1  Wheeler  Cr.   Cas. 

543,  p.  346. 

People  v.  Barber,  115  N.  Y.  473,  p.  164. 
People  v.  Barker,  60  Mich.  277,  pp.  88, 

119. 

People  v.  Barry,  31  Cal.  357,  p.  444. 
People  v.  Bascovitch,  20  Cal.  436,  p.  90. 
People  v.  Brotherton,  47  Cal.  395,  p.  308. 
People  v.  Buddensieck,  103  N.  Y.  487,  p. 

333. 

People  v.  Cheekee,  61  Cal.  404,  p.  393. 
People  v.  Clark,  33  Mich.  112,  p.  155. 
People  v.  Deacons,  109  N.  Y.  374,  pp.  143, 

144. 

People  v.  Devine,  44  Cal.  452,  p.  89. 
People  v.  Donovan,  43  Cal.  546,  p.  84. 
People  v.  Eastwood,  14  N.  Y.  662,  p.  10. 
People  v.  Finley,  38  Mich.  482,  p.  158. 
People  v.  Foley,  64  Mich.  148,  pp.  36,  79, 

119. 

People  v.  Ga»e,  50  Mich.  237,  p.  489. 
People  v.  Gastro,  75  Mich.  127,  p.  446. 
People  v.  Gonzalez,  35  N.  Y.  49,  p.  144. 
People  v.  Go'denson,  76  Cal.  328,  p.  66. 
People's,  etc.  R.  R.  Co.  v.  Green,  56  Md. 

84,  p.  333. 
People  v.  Greenfield,  30  N.  Y.   Sup.  Ct. 

462,  p.  143. 
People  v.  Hall,  48  Mich.  482,  pp.  67,  402, 

486. 
People  v.  Hare,  57  Mich.  505,  pp.  119,129, 

131,  447. 
People  v.  Hewitt,  2  Parker's  Cr.  Cas.  20, 

pp.  297,  299. 
People  v.  Hong  Ah  Duck,  61  Cal.  387,  p. 

126. 

People  v.  Jenness,  5  Mich.  305,  p.  447. 
People  v.  Kemmler,  119  N.  Y.  580,  p.  463. 
People  v.  Kemp,  42  Mich.  206,  p.  92. 
People  v.  Lambert,  5  Mich.  349,  pp.  200, 

206,  209,  219. 

People  v.  Lavalle,  71  Cal.  351,  p.  11. 
People  v.  Levy,  71  Cal.  618,  p.  8. 
People  v.  Lyons,  49  Mtch.  78,  p.  446. 
People  v.  McCann,  3  Parker's  Cr.  R.  272, 

p.  166. 

People  v.  McCoy,  45  How.  Pr.  216,  p.  180. 
People  v.  Mead,  50  Mich.  2-28,  p.  179. 


People  v.  Millard,  53  Mich.  63,  pp.  51,  66, 

71,  134,402,410,  490. 
People  v.  Miller,  33  Cal.  99,  p.  88. 
People  v.  Montgomery,  13  Abbott's  Pr. 

R.  (N.  Y.)  207,  pp.  167,  424,  440,  454. 
People  v.  Morrigan,  29  Mich.   5,  pp.  30, 

280,  450,  463. 

People  v.  Montieth,  73  Cal.  7,  p.  10. 
People  v.  Mullen,  96  N.  Y.  408,  pp.  25,  28. 
People  v.  Murphy,  101  N.  Y.  126,  pp.  108, 

111,  116. 

People  v.  Miles,  44  Mich.  606,  p.  464. 
People  v.  Noelke,  94  N.  Y.  137,  p.  89. 
People  v.  Olmstead,  30  Mich.  434,  p.  192. 
People  v.  Oyer,  etc.  Court,  83  N.  Y.  436, 

p.  88. 
People  v.  Packenham,  115  N.  Y.  200,  p. 

159. 
People  v.  Parker,  67  Mich.  222,  pp.  320, 

328. 
People  v.  Perriman,  40N.W.  Rep.  (1888), 

p.  456. 
People  v.  Rathburn,  21  Wend.    (N.  Y.) 

509,  p.  445. 

People  v.  Rlghetti,  66  Cal.  185,  p.  447. 
People  v.  Robinson,  2  Parker  Cr.  Cas. 

(N.  Y.)  236,  pp.  122,  135. 
People  v.  Sanford,  43  Cal.  32,  pp.  11, 158. 
People  v.  Schnyler,43Hun  (N.Y.),88,p. 

107. 
People  v.  Schuyler,  106  N.  Y.  298,  p.  106, 

163. 
People  v.  Security  Life  Ins.  Co.,  78  N.Y. 

114,  p.  392. 
People  v.  Sessions,  58  Mich.  594,  pp.  68, 

77. 

People  v.  Sprague,  53  Cal.  491,  p.  447. 
People  v.  Stout,  3  Parker  Cr.Cas.  670,  p. 

105. 

People  v.  Button,  73  Cal.  243,  p. ,80. 
People  v.  Thurston,  2  Parker  Cr.  Cas. 

49,  pp.  58,  78. 
People  v.  Wheeler,  60  Cal.  581,  pp.  398, 

409,  415. 
People  v.  Willson,  109  N.  Y.  345,  pp.  128, 

130, 131. 

People  v.  Wreden,  59  Cal.  392,  p.  158. 
Peoria,  etc.  R.  R.  Co.  v.  Berry,  17  Brad. 

(111.)  47,  p.  122. 
Pepper  v.  Barnett,  29  Gratt.   (Va.)   405, 

p.  287. 
Perkins  v.  Augusta  Ins. Co. ,10  Gray,  312, 

p.  25,230. 

Perkins  v.  People,  27  Mich.  386,  p.  350. 
Perkina  v.  Stickney,  132  Mass.  217  p.  55. 
Perrot  v.  Shearer,  17  Mich.  48,  p.  446. 
Peter  v.  Thickstun,  51  Mich.  "589,  p.  350. 
Peters  v.  Stavely,  15  L.  T.  (N.  S.)  151,  p. 
271. 


TABLE    OF    CASES    CITED. 


XXXV11 


Peterson  v.  Chicago,  etc.   K.   R.  Co.,  38 

Minn.  511,  pp.  66,  88. 
Petterborough  v.  Jaffrey,  6  N.  H.  462,  p. 

352. 

Phelps  v.  Town,  14  Mich.  374,  p.  18. 
Phillips  v.  Gregg,  10  Watts  (Penn.),  158, 

p.  216. 

Phillips  v.  Starr,  26  Iowa,  351,  pp.  61,  64. 
Phillips  v.  State,  6  Tex.  Ct.  of  App.  331, 

p.  314. 
Phillips  v.  Terry,  3  Abb.  N.Y.  Decis.607, 

pp.  '252.  265. 
Phoenix  Ins.  Co.  v.  Copeland,  86  Ala 

551,  p.  369. 

Pickard  v.  Bailey,  26  N.  H.  152,  p.  215. 
Pidcock  v.  Potter,  68  Pd.  St.  344,  pp.  64, 

75, 103,  121,  15*. 

Pierce  v.  Indseth,  106  U.  S.  546,  p.  211. 
Pierce  v.  Northey,  14  Wis.  9,  p.  329. 
Pierson  v.  Baird,  2  Greene  (Iowa),  235, 

p.  197. 

Pierson  v.  People,  79  K.  Y.  434,  p.  111. 
Pierson  v.  People,  23  N.  Y.  Sup.  Ct.  239, 

p.  111. 

Pierson  v.  Wallace,  7  Ark.  282,  p.  367. 
Pigg  v.  State,  43  Texas,  111,  p.  162. 
Pingery  v.  Cherokee,  etc.   Ry.  Co.,  78 

Iowa,  438,  pp.  371,  373. 
Pinney  v.  Cahill,  48  Mich.  584,  pp.  193, 

402,  408. 
Pinney's  Will,  27  Minn.  280,  pp.  9,  158, 

165. 
Pittard  v.  Foster,  12  111.  App.  132,  pp.  9, 

158. 

Pitts  v.  State,  43  Miss.  472,  pp.  119, 122. 
Pittsburg,  etc.   11.  R.  Co.  v.  Patterson, 

107  Pa.  St.  461,  pp.  349,  375. 
Pittsburgh,  etc.  R.  R.  Co.  v.  Robinson, 

95  Pa.  St.  426,  p.  370. 
Pittsburg,  etc.  R.  R.  Co.  v.  Ro?e,  74  Pa. 

St.  362,  p.  353. 
Pittsburg,  etc.  R.  R.  Co.  v.  Vance,  115 

Pa.  St.  325,  pp.  375,  376 
Planters'  Mut.  Ins.  Co.  v.  Rowland,  66 

Md.  236,  p.  250. 
Player  v.  Burlington,  etc.  R.  R.  Co.,  62 

Iowa,  723,  p.  89. 

Pleasant  v.  State,  15  Ark.  624,  p.  90. 
Plo  v.  Bush,  71  Cal.  602,  p.  447. 
Plunkett  v.  Bowman,  2  McCord,  139,  p. 

291. 
Polhemus  v.  Heinrnan,  50  Cal.   438,  p. 

271. 

Polk  v.  Coffin,  9  Cal.  56,  p.  267. 
Polk  v.  State,  36  Ark.  117,  pp.  4,  6,  64,  83, 

119, 120,  135. 
Pollard  v.  W>boru,  1  Hagg.  Ecc.  R.  725, 

p.  176. 
Pollen  v.  Le  Roy,  10  Bos.  (N.  Y.)  38,  p. 

274. 


Pontius  v.  People,  82  N.  Y.  41,  p.  329. 
Poole  v.  Richardson,  3  M>tss.  330,  p.  156. 
Pope  v.  Filley,  9  Fed.  Rep.  65,  pp.  52, 

276,  278. 

Pope  v.  Askew,  1  Ired.  16,  p.  322. 
Porter  v.  The  Pequonnoc  Mnfg.  Co.,  17 

Conn.  249,  p.  13. 

Portland  v.  Kamrn,  10  Oreg.  383,  p.  370. 
Potts  v.  Aechternacht,  93  Pa.  St.  142,  p. 

379. 

Potts  v.  House,  6  Ga.  324,  pp.  62,  156, 163. 
Powell  v.  State,  13  Tex.  Ct.  of  App.  244, 

p.  119. 
Powers  v.  Mitchell,  77  Me.  361,  pp.  67, 

130. 
Powers  v.  The  State,  23  Texas  App.  42, 

p.  12. 

Prather  v.  Ross,  17  Ind.  495,  p.  274. 
Pratt  v.  Rawson,  40  Vt.  183,  pp.  445,  460. 
Prewit  v.  People,  5  Neb.  384,  p.  447. 
Price  v.  Hartshorn,  44  Barb.  655,  p.  235. 
Price  v.  Powell,  3  N.  Y.  322,  pp.  76,  233. 
Printz  v.  People,  42  Mich.  144,  p.  353. 
Prosser  v.  Wapello,  18  Iowa,  262,  p.  369. 
Public  School  v.  Risley's  Heirs,  40  Mo. 

356,  p.  255. 
Pullman  v.  Corning,  9  N.   Y.  93,  pp.  53, 

76. 
Puryear  v.  Reese,  46  Tenn.  21,  p.  158. 

Q. 

Quaife  v.  Chicago,  etc.  R.  U.  Co.,  48  Wis. 

513, p.  115. 
Queen  v.  Crouch,  1  Cox    Cr.  Gas.  94,  p  . 

412. 
Queen  v.  Shepherd,  1  Cox  Cr.  Cas.  237, 

p.  299. 
Quinn  v.  Higgins,  63  Wis.  66t,  pp.  65,  66, 

79. 
Quinn  v.  National,  etc.  Ins.  Co.,  1  Jones 

&  Carey  (Ir.),  316,  p.  247. 
Quinsigamoud  Bank  v.  Hobbs,  11  Gray, 

250,  pp.  57,  300. 

R. 

Railroad  Co.  v.  Bixby,  57  Vt.  548,  p.  366. 
Railroad  Co.  v.  Foreman,  24  W.  Va.  662, 

p.  370. 
Railroad  Co.  v.  Lehman,  56  Md.  226,  p. 

394. 
Railroad  Co.  v.  Schultz,  43  Ohio  St.  270, 

pp.  8,  9, 13,  15. 

Raialer  v.  Springer,  38  Ala.  703,  p.  12. 
Raisin  v.  Clark,  41  Md.  158,  p.  272. 
Ramudge  v.  Ryan,  9  Bing.  333,  p.  32. 
Rambler  v.  Tyron,  7  S.  &  R.  90,  pp.  156, 

158. 

Randall  v.  Chase,  133  Mass.  210,  p.  333. 
Randall  v.  Rotch,  12  Pick.  (Mass.)  107, 

p.  271. 


XXXV111 


TABLE    OF    CASES    CITED. 


Randolph  v.  Adams,  2  W.  Vu.  519,  p.  255. 
Randolph  v.  Holden,  44  Iowa, 327,  p.  271. 
Randolph  v.  Laughlin,  48  X.  Y.  457,  p. 

839. 

Rape  v.  Heaton,  9  Wis.  328,  p.  199. 
Raridan  v.  Central,  etc.  Ry.  Co.,  69  Iowa, 

531, p.  349. 

Rash  v.  State.  61  Ala.  89,  pp.  125,  128. 
Rttwls  v.  Am.  Mut.  Life  Ins.  Co., 27  X.  Y. 

•282,  p.  249. 

Ray  v.  State,  50  Ala.  104.  p.  12. 
Raymond  v.  City  of   Lowell,  6  Cush. 

(Mass.)  524,  p.  33. 
Raynham  v.  Canton,  3  Pick.  293,  pp.  2C1, 

205,  213. 
Read  v.  Barker,  30  X.  J.  Law,  378,  p  257; 

S.  C.,-32  X.  J.  Law,  378,  p.  257. 
Reading  v.  Menham,  1  Moo.  &  R.  234,  p. 

271. 

Real  v.  People,  42  X.  Y.  270,  p.  159. 
Reamer  v.  Xesmith,  34  Cal.  627,  p.  274. 
Reber  v.  Hening,  115  Pa.  St.  599,  p.  67. 
Record  v.  Village  of  Saratoga  Springs, 

46  Hun,  450,  p.  112. 

Reddin  v.  Gates,  62  Iowa,  210,  p.  334. 
Rediout  v.  Xewton,  17  X.  H.  71,  p.  287. 
Reed  v.  Dick,  8  Watts  (Penn.),  479,  p.  230. 
Reed  v.  Dials,  67  Cal.  491,  p.  356. 
R^f  d  v.  Xew,  35  Kan.  727,  pp.  357,  377. 
Reed  v.  Richardson,  98  Mass.  216,  p.  272. 
Reed  v.  Spaulding,  42  X.  H.  Ill,  p.  321. 
Reed  v.  State,  62  Midi.  405,  p.  63. 
Reed  v.  Wilson,  41  X.  J.  Law,  29,  p.  394. 
Reese  v.  Reese,  90  Penn.  89,  pp.  2*0,  294, 

300. 

Reeve  v.  Dennett,  145  Mass.  23,  p.  189. 
Regina  v.  Dent,  1  C.  &  R.  (47  E.  C.  L.)  96, 

p.  219. 

Regina  v.  Dyer,  6  Mod.  41,  p.  3f3 
Regina  v.  Xewuian,  3  C.  &  K.  260,  p.  90. 
Reginn  v.  Still,  32  Me.  370,  p.  154. 
Regina  v.  Taylor,  6  Cox  C.  C.  68,  pp.  340, 

413. 

Rtgina  v.  Williams,  pp.  297,  300. 
Reid  v.  Ladue,  66  Mich.  22,  p.  18. 
Reid  v.  Piedmont,  etc.  Life  Ins.  Co.,  58 

Mo.  425.  p.  82. 
Reilley  v.  Rivett,  1  Cases  in  Eng.  Ecc. 

Cts.  43,  n.  a.,  pp.  299,  310. 
Renihan  v.  Dennin,  103  N.  Y.  573,  pp. 

107, 110. 
Republican  Valley  R.  R.  Co.  v.  Arnold, 

13  Xeb.  485,  p.  370. 
Republican,  etc.  Co.  v.  Miner,  12  Col.  86, 

p.  18. 

Revett  v.  Braham,  14  Term,  49,  p.  298. 
Rex  v.  Cater,  4  Esp.  117,  p.  299. 
Rex  v.  Despard,  28  Howell  St.  Tr.  346,  p. 

447. 


Reynolds  v.  Jourdan,  5  Cal.  108,  p.  274. 
Reynolds  v.  Lounsbury,  6  Hill  (X.  Y.), 

534,  p.  39. 
Reynolds  v.  Robinson,  64  X.  Y.  5S9,  pp. 

61,386. 

Rice's  Succession,  21  La.  Ann.  614,  p.  197. 
Rich  v.  Jones,  9  Cush.  (Mass.)  337,  p.  59. 
Richards  v.  Doe,  100  Mass.  524,  p.  282. 
Richards  v.  Fuller,  38  Mich.  653,  p.  446. 
Richards  v.  Murdock,  10  B.  &  C.  537,  p. 

247. 
Richardson  v.  McGoldrick,  43  Mich.  476, 

p.' 353. 
Richardson  v.  Xewcomb,  21  Pick.  315, 

pp.  320,  329. 

Rider  v.  Miller,  86  X.  Y.  507,  p.  159. 
Rinehart  v.  Wbitehead,  64  Wis.  42,  p. 

130. 

Riordan  v.  Gugerty,'  74  Iowa,  688,  p.  303. 
Ripple  v.  Ripple,  1  Rawle  (Penn.),  386, 

p.  199. 

Ritter  v.  Daniels,  47  Mich.  617,  p.  380. 
Roberts  v.   Commissioners  of   Brown 

County,  21  Kan.  248,  pp.  20,  367. 
Roberts  v.  Johnson,  58  X.  Y.  613,  pp.  43, 

104,  149. 
Roberts  v.  Ogdensbnrgh,  etc.  R.  R.  Co., 

29  Hun  (X.  Y.),  154,  p.  184. 
Robertson  v.  Knapp,  35  X.  Y.  91,  p.  373. 
Robertson  v.  Sta-k.  15  X.  H.  109,  pp.  20, 

352. 

Robinson  v.  Adams,  62  Me.  369,  p.  156. 
Robinson  v.  Clifford,  2  Wash.  C.  C.  2,  p. 

205. 
Robinson  v.  Fitchburg,  etc.,  R.  R.  Co.,  7 

'  Gray  (Mass.),  92,  p.  6. 
Robinson  v.  X.  Y.  Central  R.  R.  Co.,  9 

Fed.  R.  877,  p.  414. 
Robinson  v.  St.  L.,  etc.  R.  R.  Co.,  21  Mo. 

App.  144,  p.  242. 
Rochester,  etc.  R.  R.  Co.  v.  Budlong,  10 

How.  Pr.  289,  pp.  20,  25,  370,  371. 
Rochester  v.  Chester,  3  N.  H.  364,  pp.  6, 

352. 
Rodgers  v.   Kline,  66  Mids.  818,  pp.  18, 

274. 

Roe  v.  Roe,  40  X.  Y.  Sup.  Ct.  1,  p.  294. 
Roe  v.  Taylor,  45  111.  486,  p.  158. 
Rogers  v.  Ritter,  12  Wall.  317,  p.  289. 
Root  v.  Merriwether,  8  Bush  (Ky.),401, 

p.  200. 
Rose  v.  First  Xat.  Bank  of  Springfield, 

91  Mo.  399,  pp.  321,  328,  342. 
Rouse  v.  Morris,  17  S.  &  R.  (Penn.)  328, 

p.  384. 
Rowe  v.  Rawling?,  7  East,  282,  note   a,  - 

p.  310. 

Row«  v.  Yuba  Co.,  17  Cal.  61,  p.  426. 
Rowell    v.    City    of    Low<ll,    11    Gray 

(Mass.),  420.  p.  130. 


TABLE    OF    CASES    CITED. 


XXXI  X 


Rowell  v.  Fuller,  59  Vt.  688,  pp.  323,  330, 

331. 

Rowland  v.  Fowler,  37  Conn.  348,  p.  30. 
Rowley  v.  London,  etc.  R.  R.  Co.,  8  Ex. 

(L.  R.)  221,  PP-  386,  387,  332. 
Rncker  v.  Wheeler,  127  U.  S.  85,  p.  44:.. 
Ruloff  v.  People,  4.',  N.  V.  213,  p.  333. 
Ramsey  v.  People,  19  N.  Y.  41,  p.  188. 
Ruuyon  v.  Price,  15  Ohio  St.  14,  p.  159. 
Rush  v.  Megee,  38  Ind.  69,  pp.  61, 158. 
Russell  v.  Hayden,  40  Minn.  88,  p.  356. 
Russell  v.  Horn  Pond,  etc.  R.  R.  Co.,  4 

Gray,  607,  p.  373. 
Russell  v.   State,  53  Mis3.  367,  pp.  103, 

163. 

Rutherford  v.  Mori  i-.  77  111.  3H7,   p.   478. 
Ryinan    v.  Crawford,  ffi   Ind.  262,  p.  158. 

S. 

> v.  A ,  3  Prob.  Div.   (L.  R.)  72,  p. 

176. 
Sallwaser  v.  Hizlit,  18  111.  App.  243,  p. 

2C. 
Salvin  v.  North  Brancepeth  Coal  Co.,  \ 

9  Ch.  App.  (L.  R.)  705,  p.  146. 
Salvo  v.  Duncan,  49  Wia.  157,  p.  269. 
Sanborn  v.  Madeira  Flume  &  Trading 

Co.,  70Cal.  2fil,p.  270. 
Sanchez  v.  People,  22  X.  Y.  147,  p.  169. 
Sanderson  v.   Nashua,  44  N.  H.  492,  pp. 

84,  12.'. 

Sanderson  v.  Ogood,  52  Vt.  309,  p.  323.  ; 
Sandwich    Mnfg.   Co.   v.   Nicholson,  32 

Kan.  666,  p.  :-«.». 
San  Diego  L-ind,  etc.  Co.  v.  Neale,  78 

Cdl.  63,  p.  352. 
Saph  v.  Atkinson,  2  Eng.  Ecc.,  R.  64,  p. 

310. 
Sarle  v.  Arnold,  7  R.  I.  586,  pp.  40,  57, 

266. 

Sartorious  v.  State,  21  Miss.  602,  p.  90. 
Sasser  v.  State,  13  Ohio,  453,  p.  344. 
Savings  Bank  v.  Ward,  100  U.  S.  195,  p. 

Sauter  v.  X.  Y.  Cent.  R.  R.  Co.,  13  X.  Y. 

Sup.  Ct.  451,  pp.  387,  392. 
Sawyer  v.  Boston,  141  Mass.  470,  p.  349. 
Scaggs  v.  BUtimore,  etc.  R.  R.  Co.,  10 

Md.  268,  p.  6. 

Scharff  v.  Keener,  64  Pa.  St.  376,  p.  286. 
Schell  v.  Plumb,  55  N.  Y.  598,  pp.  387,  | 

B93. 
Schenck  v.  Mercer  Co.  Ins.  Co.,  24  X.  J. 

Law,  451,  p.  249. 
Schennerhorn  v.  Tyler,  11  Hun,  551,  p. 

354. 

Schlencker  v.  State,  9  Xeb.  250,  p.  128. 
Schmidt  v.  Herfurth,  5  Robertson  (N. 

Y.),124,  p.  378. 
Schmitt  v.  Peoria  Ins.  Co.,  41  111.  296,  p. 

250;  S.  C.,5  Ben.  Fire  Ins.  Cases,  90,  p. 

250. 


Schneider  v.  Manning,  121  111.  376,  pp. 

119, 121, 163, 165. 
Schoup  v.  Schenck,  40  X.  J.  L.  195,  p. 

380. 
Schroeder  v.  C.,  R.  I.  etc.  R.  R.  Co.,  47 

Iowa,  375,  pp.  176,  182. 
Schultz  v.  LindeH,  30  Mo.  310,  p.  255. 
Schwander  v.  Birge,  46  Hun  (N.  Y.),-66, 

pp.  14, 16,  24.  58. 
Schwartzbach  v.  Ohio  Valley  Protec 

tion  Union,  21  Pa.  St.  466,  p.  249. 
Seals  v.  Edmondson,  71  Ala.  509,  p.  283. 
Seaver  v.  Boston,  etc.  R.  R.  Co.,  14  Gray 

(Mas.-*.),  466,  p.  241. 
Seamans  v.  Smith,  46  Barb.  (N.  Y.)  320, 

p.  264. 
Seaman  v.  Foneiau,2  Strange,  1183,  p. 

247. 

Seeley  v.  Brown,  15  X.  J.  L.  35,  p.  380. 
Seibles  v.  Blackwell,  1  McM.  (S.   C.)  57, 

p.  6. 

Seliger  v.  Bastian,  66  Wis.  521,  pp.  15, 16. 
Selma,  etc.  R.  R.  Co.  v.  Keath,  53  Ga. 

178,  p.  373,  375. 

Semple  v.  Hager,  27  Cal.  163,  p.  198. 
Senor  v.  Hoist,  31  Minn.  479,  p.  361. 
Sexton  v.  Lamb,  27  Kan.  426,  p.  351. 
Shafer  v.  Dean's  Admr.,  29  Iowa,  144,  p. 

386. 

Shatter  v.  Evans,  53  Cal.  32,  p.  25. 
Sharp  v.  Hall,  86  Ala.  110,  p.  18. 
Shattuck,  v.  Stoneham  Branch   R.  R. 

Co.,  6  Allen,  115,  p.  370. 
Shattuck  v.  Train,  116  Mass.  296,  p.  378. 
Shaver  v.  McCarthy,  110  Pa.  St.  339,  pp. 

9,  157. 
Shaw  v.  City  of    Charleston,  2   Gray 

(Mass.),  109,  p.  351. 
Shaw  v.  Susquehanna  Boom  Co.,   125 

Pa.  St.  324,  p.  35. 
Shawneetown  v.  Mason,  82  111.  337,  pp. 

189, 191. 

Sheahan  v.  Barry,  27  Mich.  217,  p.  446. 
Shed  v.  Augustine,  14  Kan.  282,  p.  199. 
Sheldon  v.  Benham,  4  Hill,  129,  p.  276. 
Sheldon  v.  Booth,  50  Iowa,  209,  pp.  259, 

26d,  363. 

Sheldon  v.  Warner,  45  Mich.  638,  p.  305. 
Shelton  v.  State,  34  Tex.  666,  pp.  119, 131. 
Shepard  v.  Ashley,  10  Allen  (Mas9.),542, 

p.  362. 

Shepard  v.  Pratt,  16  Kan.  209,  p.  6. 
Sherb  v.  Kinzie,  80  Ind.  500,  pp.  319,  328. 
Sherman  v.  St.  Paul,  etc.  R,  R.  Co.,  3C 

Miun.  227,  p.  370. 

Shifflett  v.  Morelle,  68  Texas,  382,  p.  18. 
Short  Mountain  Coal  Co.  v.  Hardy,  114 

Mass.  197,  o.  18. 
Shriver  v.  Sioux  City,  etc.  R.  R., 24  Minn  . 

506,  p.  282. 

Shulte  v.  Hennessey,  40  Iowa,  352,  p.  262. 
Sibley  v.  Smith,  46  Ark.  275,  p.  183. 


xl 


TABLE    OF    CASES    CITED. 


Sickels  v.  Gould,  51  How.  Pr.  (X.  Y.)  25 

p.  264. 

Sid  well  v.  Robert,  1  Pa.  283,  p.  226. 
Sikes  v.  Paine,  10  Ired.  (X.  C.)  Law,  282, 

pp.  39, 232,  445. 

Sill  v.  Reese,  47  Cal.  343,  p.  289. 
Silverthorne  v.  Fowle,  4  Jones  (X.  C.) 

Law,  362,  p.  274. 
Simmons  v.  Means,  8  S.  &  M.  (Miss.)  397, 

p.  384. 
Simmons  v.  St.  Paul,  etc.  R.  R.  Co.,  18 

Minn.  168,  p.  370. 
Simmons  v.  St.  Paul,  etc.  R.  R.  Co.,  19 

Minn.  184,  p.  373. 

Simmons  v  Carrier,  68  Mo.  416,  p.  362. 
Simonson  v.  C.,  R.  I.  &  P.  R.  Co.,  49  Iowa, 

87,  p.  387. 
Sims  v.  Maryatt,  17  Q.  B.  (79  E.  C.  L.)  292, 

p.  197. 

Sinndtt  v.  Mullin,  82  Pa.  St.  342,  p.  34. 
Sinclair  v.  Roush,  14  Ind.  450,  p.  367. 
Sioux  City,  etc.  R.  R.  Co.  v.  Finlayson, 

16  Xeb.  578,  pp.  44,  184. 
Sirrine  v.  Briggs,  31  Mich.  443,  pp.  377, 

378. 
Sisson  v.  Cleveland,  etc.  R.  R.  Co.,  14 

Mich.  489,  pp.  350,  378. 
Sizer  v.  Burt,  4  Denio,  426,  p.  91. 
Slater  v.   Wilcox,  57  Barb.  604,  pp.  193, 

266. 
Slocovich  v.  Orient  Mut.  Ins.  Co.,  108 

X.  Y.  pp.  56,  358,  360. 
Slussman  v.  Merkle,  3  Bos.  (X.  Y.)  402. 

p.  381. 

Small  v.  Pool,  8  Ired.  (X.  C.)  47,  p.  350. 
Smalley  v.  Appleton,  70  Wis.  340,  pp.  11, 

189. 

Smith  v.  Clews,  114  X.  Y.  190,  p.  274. 
Smith  v.   Frost,  42  X.  Y.  Sup.  Ct.  87,  p. 

388. 

Smith  v.  Gould,  4  Moore,  P.  C.  21,  p.  198. 
Smith  v.  Gugerty,  4  Barb.  (X.  Y.)  019,  p. 

263. 
Smith  v.  Hickenbottom,  57  Iowa,  733, 

p.  61. 

Smith  v.  Mitchell,  12  Mich.  180,  p.  350. 
Smith  v.  State,  55  Ala.  1,  p.  11. 
Smith  v.  Tallapoosa  Co.,  2  Woods,  574, 

p.  198. 

Smith  v.  Walton,  8  Gill,  86,  pp.  287, 325. 
Smith  v.  Watson,  14  Vt.  332,  p.  384. 
Smith  v.  Wilcox,  4  Hun,  411,  p.  364. 
Smyth  v.  Caswell,  67  Tex.  573,  p.  323. 
Snelling  v.  Hale,  107  Mass.  134,  p.  271. 
Snider  v.  Burks,  84  Ala.  53,  p.  328. 
Snow  v.  Boston,  etc.  R.  R.  Co.,  65  Me. 

230,  pp.  4,  20,  370. 
Snow  v.  Grace,  29  Ark.  138,  p.  12. 
Snow  v.  Wiggin,  19  111.  App.  542,  p.  325, 


Snowdon  v.  Idaho  Quartz  Mnfg.  Co.,  56 

Cal.  450,  p.  39. 
Snyder  v.  Iowa  City,  40  Iowa,  646,  pp. 

4->2,  425. 
Snyder  v.  McKeever,  10  Brad.  (111.)  190, 

p.  290. 

Snyder  v.  State,  70  Ind.  349,  pp.  445,  490. 
Snyder  v.  Western  Union  R.  R.  Co.,  25 

Wis.  60,  p.  370,  373. 

Solarte  v.  Melville,  7  B.  &  C.  430,  p.  445. 
Soquet  v.  Stnte,  72  Wis.  659,  pp.  102,  404. 
Sorg  v.  First  German  Congregation,  63 

Pa.  St.  156,  pp.  39,  55. 
South,  etc.   R.   R.  Co.  v.  McLendon,  63 

Ala.  266,  p.  11. 
Southern  Life  Ins.  Co.  v.  Wilkinson,  53 

Ga.  535,  p.  56. 
Southern  Ex.  Co.  v.  Thornton,  41  Miss. 

216, p.  288. 

Southey  v.  Xash,  7  C.  &  P.  632,  p.  90. 
Southwestern  Freight,  etc.  Co.  v.  Stand- 
ard, 44  Mo.  71,  p.  272. 
Sowers  v.  Dukes,  8  Minn.  23,  pp.  15,  20. 
Sparrow  v.   Harrison,  3  Curteis,  16,  p. 

176. 
Spaulding  v.  Vincent,  24  Vt.  501,  pp.  205, 

210. 

Spear  v.  Bone,  5  A.  &  E.  709,  pp.  297,  299. 
Spear  v.  Drainage  Commissioners,  113 

111.  63.J,  pp.  12,  370. 
Spear  v.  Hiles,  67  Wis.  367,  p.  118. 
Spear  v.  Richardson,  37  X.   H.  23,  pp. 

58,  64. 
Speiden  v.  State,  3  Tex.  Ct.  of  App.  159, 

p.  297. 

Spickerman  v.  Clark,  9  Hun,  133,  p.  230. 
Spiva  v.  Stapleton,  38  Ala.  171,  p.  266. 
Spottiswood  v.  Weir,  66  Cal.  525,  pp.  332, 

338. 
Springer  v.  Hall,  83  Mo.  693,  pp.  29J,  321. 

378. 
Springfield  v.   Schmook,  68  Mo.  394,  p. 

350. 
Springfield    v.     Worcester,     2     Gush. 

(Mass.)  52,  p.  197. 
Stafford  v.  City  of  Oskaloosa,  64  Iowa, 

251,  p.  26. 
Stambaugh  v.  Smith,  23  Ohio  St.  534,  p. 

278. 

Stanford  v.  Pruet,  27  Ga.  243,  p.  199. 
State  v  Ah.  Chuey,  14  Xev.  79,  p.  178;  8. 

C.,  1  Cr.  Law  Mag.  634,  p.  178. 
State  v.  Allen,  1  Hawk's  L.  &  Eq.  (X.  C.) 

6,  p.  344. 
State  v.Anderson,  10  Oregon,  448,  pp. 

25,66. 

State  v.  Archer,  54  N.  H.  465,  p.  156. 
State  v.  Babb,  76  Mo.  501,  p.  10. 
State  v.  Bailey,  4  La.  Ann.  376,  p.  458. 
State  v.  Baptiste,  26  La.  Ann.  134,  p.  119. 


TABLE    OF    CASES    CITED. 


xli 


State  v.  Baldwin,  36  Kan.  1,  pp.  8,  10,  261, 

400,  409. 

State  v.  Benner,  64  Me.  267,  p.  88. 
.State  v.  Boban,  19  Kan.  28,  p.  492. 
State  v.  Bowman,  80  X.  C.  432,  437  p.  36. 
State  v.  Bowman,  78  X.  ,C.  609,  pp.  63, 

119, 134. 

State  v.  Brooks,  92  Mo.  542,  p.  36. 
State  v.  Bryant,  93  Mo.  273,  p.  158. 
State  v.  Candler,  3  Hawk's  Law  &  Eq. 

(N.  C.)  393,  p.  344. 
State  v.  Carr,  5  X.  H.  369,  p.  345. 
State  v.  Chec  Gong,  17  Oreg.  638,  pp.  127, 

256. 
State  v.  Cheek,  13  Ired.  (N.  C,~)  114,  p. 

345. 

State  v.  Clinton,  67  Mo.  380,  pp.  321,  328, 
State  v.  Clark,  15  S.  C.  (N.  S.)  403, pp.  4. 

20,  99,  119. 
State  v.  Clark,  12  Ired.  (N.  C.)  151,  pp.  21, 

102,  124, 127. 

State  v.  Cob,  63  Iowa,  695,  p.  65. 
State  v.  Cole,  63  Iowa,  695,  pp.  39,  42,  64, 

]35. 

State  v.  Cole,  94  N.  C.  958,  pp.  61,  71, 
State  v.  Cook,  17  Kan.  392,  pp.  105, 135, 

137, 138. 

State  v.  Cross,  68  Iowa,  180,  pp.  66, 128. 
State  v.  Cuellar,  47  Tex.  304,  p.  217. 
State  v.  Dollar,  66  N.  C.  626,  p.  422. 
State  v.  Ellington,  7  Ired.  (X.  C.)  67,  p. 

447. 

State  v.  Erb,  74  Mo.  199,  pp.  9, 158, 161. 
State  v.  Felter,  25  Iowa, 67,  pp.  63, 75, 162, 

169. 

State  v.  Fincb,  70  Iowa,  316,  p.  366. 
State  v.  Fitzsimmons,  30  Mo.  236,  p.  90, 
State  v.  Folwell,  14  Kan.  105,  pp.  8, 10. 
State  v.  Gay,  94  N.  C.  814,  p.  286. 
State  v.  Gedicke,  43  X.  J.  Law,  86,  pp.  116, 

117. 

State  v.  Geddis,  42  Iowa,  268,  p.  156. 
State  v.  Gee,  85  Mo.  647,  p.  447. 
State  v.  Givens,  5  Ala.  754,  pp.  310,  328. 
State  v.  Glass,  5  Oreg.  73,  p.  76. 
State  v.  Graham,  74  X.C.  646,  p.  179;  S.C., 

21  Am.  Kep.  493,  p.  179. 
State  v.  Grant,  79  Mo.  113,  p.  89. 
State  v.  Hackett,  70  Iowa,  442,  p.  490. 
State  v.  Hanley,  34  Minn.  430,  p.  66. 
State  v.  Harris,  5  Ired.  (\.  C.)  Law,  287, 

p.  345. 

State  v.  Harris,  63  X.  C.  1,  p.  131. 
State   v.  Hastings,  53  X.  H.  452,  pp.  321, 
State  v.  Hayden,5l  Vt.  296,  pp.  59,81,158. 

330. 
State  v.  Hinkle,  6  Iowa,  380,  pp.  53, 135, 

138. 

State  v.  Hinchman,  27  Pa.  St.  479,  p.  200. 
State  v.  Hockett,  70  Iowa,  442,  p.  192. 


State  v.  Hooper,  2  Bailey    (8.  C.)  Law, 

37,  pp.  83,  345. 

State  v.  Hogard,  12  Minn.  293,  p.  444. 
State  v.  Houston,  78  Ala.  576,  p.  11. 
i  State  v.  Hoyt,  46  Conn.  330,  pp.  167,418. 
I  State  v.  Huxford,  47  Iowa,  16,  p.  10. 
State  v.  Isaacson,  1  F.  &  F.  194,  p.  90. 
State  v.  Jacobs,  6  Jones  (X.  C.)  Law,  284, 

p.  278. 
State  v.  Jackson,  2    Dev.  (X.  C.)  563, 

p.  226. 

State  v.  Jarrett,  17  Md.  309,  p.  197. 
State  v.  Jones,  41  Kan.  309,  p.  126. 
State  v.  Jones,  68  X.  C.  443,  pp.  130, 131. 
State  v.  Keene,  100  X.  C.  509,  p.  131. 
State  v.  Klinger,  46  Mo.  224,  pp.  76, 158. 
State  v.  Knapp,  45  X.  H.  148,  pp.  162, 155. 
State  v.  Knight,  43  Me.l,  pp.  127,  132,141, 

142, 144. 
State  v.  Lautenschlager,  22  Minn.  521, 

p.  71. 

State  v.  Leabo,  89  Mo.  247  p.  36. 
State  v.  Mayues,  61  Iowa,  119,  p.  41. 
State  v.  Matthews,  66  X.  C.  113,  pp.  118, 

130. 

State  v.  McKean,  4  Gray,  29,  p.  447. 
State  v.  McLaughlin,  44  Iowa,  82,  p.  89. 
State  v.  Medicott,  9  Kan.  289,  p.  59. 
State  v.  Morgan,  95  X.  C.  641,  p.  119. 
State  v.  Morphy,  33  Iowa,  272,  pp.  127, 

130. 

State  v.  Morris,  147  Conn.  179,  p.  393. 
i  State  v.  Morris,  84  X.  C.  756,  p.  10. 
State  v.  Murphy,  9  Xev.  394,  p.  132. 
State  v.  Xash,  8  Ired.  (X.  C.)  35,  p.  447. 
State  v.  Xat,  6  Jones  (X.  C.),  114,  p.  448. 
State  v.  Xewlin,  69  Ind.  108,  p.  158. 
State  v.  O'Brien,  7  R.  I.  336,  pp.  404,  408. 
State  v.  O'Conner,  13  La.  Ann.  486,  p.  197. 
State  v.  Owen,  73  Mo.  440,  p.  311. 
State  v.  Parker,  96  Mo.  382,  p.  12. 
State  v.  Phair,  48  Vt.  636,  pp.  3,  297,  298. 
State  v.  Pike,  49  X.  H.  399,  pp.  34, 119, 128, 

166, 187. 
State  v.  Porter,  34  Iowa,  131,  pp.  37, 127, 

130. 
State  v.  Portland  Publishing  Co.,  68  Me. 

279,  p.  10. 

State  v.  Potts,  100  X.  C.  457,  p.  157. 
State  v.  Powell,  7  X.  J.  Law,  295,  pp.  125, 

130. 
State  v.  Rainsberger,  74  Iowa,  196,  pp. 

129, 132. 
State  v.  Reddick,  7  Kan.  143,  pp.  101, 102, 

103. 

State  v.  Reitz,  83  X.  C.  634,  p.  10. 
State  v.  Salge,  2  Xev.  321,  p.  90. 
State  v.  Sayers,  58  Mo.  685,  p.  88. 
State  v.  Scott,  45  Mo.  302,  pp.  287,321,328. 


xlii 


TABLE    OF    CASES    CITED. 


State  v.  Secrest,  80  N.  C.  450,  pp.  39,  41,42, 

187,  445. 
State  v.  Shinborn,  46  N.  H.  497,  pp.  12, 

294,  821. 

State  v.  Shelton,  64  Iowa,  333,  p.  10. 
State  v.  Slagle,  83  X.  C.  630,  pp.  99, 136. 
State  v.  Sorenson,  32  Minn.  12o,  p.  26. 
State  v.  Smallwood,  75  N.  C.  104,  p.  446. 
State  v.  Smith,  32  Me.  370,  pp.  119, 164. 
State  v.  Smith,  Phillips   (N.  C.)   Law, 

302, p.  152. 

State  v.  Smith,  49  Conn.  376,  p.  88. 
State  v.  Speaks,  94  N.  C.  865,  p.  100. 
State  v.  Stair,  87  Mo.  268,  p.  286. 
Stiles  v.  Steele,37  Kan.  552,  p.  18. 
State  v.  Struble,  71  Iowa,  11,  p.  181. 
State  v.  Surtly,  2  Hawk's  (N.  C.),  441,  p. 

199. 

State  v.  Teipner,  36  Minn.  532,  p.  436. 
State  v  Terrill,  12  Rich.  (S.  G)  321,  pp.  47, 

121, 122, 135. 
State  v.  Thompson,  80  Me.  194,  pp.  286, 

320,  331. 
State  v.  Tornpkins,  71  Mo.  613,  pp.  293, 

297,  328. 
State  v.  Tutt,  2  Bailey  (S.  C.)  Law,  37,  p. 

345. 
State  v.  Twitty,  2  Hawks  (N.  C.),  248,  p. 

199.- 

State  v.  Upton,  20  Mo.  397,  p.  444. 
State  v.  Vines,  93  N.  C.  493,  p.  126. 
State  v.  Ward,  29  Vt.  225,  pp.  39,  298,  330, 

331. 

State  v.  Watson,  65  Me.  74,  pp.31,  249. 
State  v.  West,  Houston  C.  C.  371,  p.  418. 
State  v.  Whitacre,  98  N.  C.  753,  p.  256. 
State  v.  Windsor,  5  Harr.  (Del.)  512,  pp. 

161,163,167,168,  475. 
State  v.  Williams,  42  Conn.  261,  p.  447. 
State  v.  Wilcox,  57  Barb.  604,  p.  20. 
State  v.  Winter,   72  Iowa,  627,  pp.  158, 

-  397,  410. 
State  v.  Wood,  53  N.  H.  484,  pp.  47, 102, 

154,  155. 

State  v.  Zellers,  7  N.  J.  Law,  220,  p.  90. 
Steagal  .1  v.  State,  24  Tex.  Ct.  of  App.  207, 

p.  129. 
Steamboat  v.  Logan,  18  Ohio,  375,  pp. 

231,  232. 
Steam  Packet  Co.  v.  Sickles,  10  How. 

(U.  S.)   419,  p.  364. 
Stearine  v.  Hentzman,  17  C.  B.  (N.  S.) 

56, p.  276. 

Stearns  v.  Field,  90  N.  Y.  640,  p.  65,  66. 
Stennett  v.  Ben.  Fire  Ins.  Co.,  42  N.  J. 

Law,  46,  p.  260. 
Stennett  v.  Pa.  Fire  Ins.  Co.,  68  Iowa, 

674, p.  247. 
Stephenson  v.  Bannister,  3  Bibb  (Ky.), 

369, p.  199. 


Stevens  v.  Brennan,   79  X.  Y.  255,  p.  58. 
Stewart  v.  Redditt,  3  Md.  67,  p.  158. 
Stilling  v.  Town  of  Thorp,  54  Wis.  528,  p. 

404. 
Stillwater  Turnpike  Co.    v.  Coover,  26 

Ohio,  520,  p.  14. 
Stillwell  Mnfg.   Co.  v.  Phelps,  130  U.  8. 

520, p.  55. 
St.  George  v.  Blddeford,  76  Me.  598,  p. 

166. 
St.  Joseph,  etc.  R.  R.  Co.  v.  Orr,  8  Kan. 

419,  p.  350. 
St.  Louis,  etc.  R.  R.  Co.  v.  Anderson,  39, 

Ark.  167,  p.  370. 
St.  Louis,  etc.  R.  R.  Co.  v.  Chapman,  38 

Kan.  307,  pp.  349,  370. 
St.  Louis  Mut.  Life  Ins.  Co.  v.  Graves,  6 

Bush  (Ky.),  290,  p.  32. 
St.  Louis,  etc.  R.  R.  Co.  v.  Haller,  82  111. 

208, p.  349. 
St.  Louis,  etc.  R.  R.  Co.  v.  Ritz,  33  Kan. 

404,  pp.  15,26. 
St.  Louis,  etc.  R.  R.  Co.  v.  Smith,  42  Ark. 

265,  p.  350. 
St.  Louis,  etc.  R.  R.  Co.  v.  Vickers,  122 

U.  S.  360,  p.  445. 
Stokes  v.  Macker,  62  Barb.  (N.  Y.)  145, 

p.  197. 
Stokes  v.  State,  5  Baxt.  519,  p.  179;  s.  C., 

30  Am.  Rep.  72,  p.  179. 
Stondentneier  v.   Williamson,  29    Ala. 

553,  p.  397. 
Stone  v.  Chicago,  etc.  R.  R.  Co.,  66  Mich. 

76,  pp.  490,  491. 

Stone  v.  Covell,  29  Mich  362,  p.  373. 
Stone  v.  Hubbard,  7  Cush.  (Mass.)  595, 

p.  302. 

Stone  v.  Tupper,  58  Vt.  409,  p.  378. 
Stone  v.  Watson,  37  Ala.  279,  p.  189. 
Storey  v.  Salomon,  6  Daly   (X.  Y.),532, 

p.  276. 

Storer's  Will,  28  Minn.  9  p.  71. 
Storm  v.  United  States,  94  U.  S.  76,  p.  89. 
Story  v.  Maclay,  3  Mon.  (Ky.)   480,483, 

p.  24. 

Stowe  V.  Bishop,  58   Vt.  498  p.  16. 
Stowe  v.  Bishop,  68  Vt.  498,  p.  20. 
Stranger  v.  Searle,  1  Esp.  14,  pp.  290,294. 
Stroh  v.  Hinchman,  37  Mich.  490,  p.  87. 
Strohm  v.  X.  Y.,  etc.  R.  R.  Co.,  96  X.  Y. 

305,  p.  123. 

Strong  v.  Kean,  13  Irish  Law  R.  93,  p.  64. 
Strother  v.  Lucas,  6  Pet.  763,  pp.  198, 310, 

323. 

Stumore  v.  Shaw,  68  Md.  11, 19,  p.  26. 
Stuart  v.  Haven,  17  Xeb.  214,  p.  184. 
Sturgis  v.  Knapp,  33  Vt.  486,  pp.  23,  355 


TABLE    OF    CASES    CITKD. 


xliii 


Sturm  v.  \\  -iiliam?,  38  X.  Y.  Sup.  Ct.  325, 

p.  2~4 ,  3.=>7. 

Sullivau  v.  Lear,  23  Fla.  463,  pp.  353, 365. 
Summers   v.  U.  S.  Ins.  Co.,  13  L:i.  Ann. 

oii4,  p.  247;  s.  c.,  1  Bigelow  Ins.  Cas. 

131,  p.  247. 
Summer  v.  State,  6  Ct.  of  Appeals,  374, 

p.  435. 

x  Peerage  Case,  11  Cl.  &  F.  85,  pp. 

2"4,  216,  220,  223,  409. 
Sutherland  v.  Hawkins,  56  Ind.  343,  p. 

158. 

Swan  v.  County  of  Middlesex,  101  Mass. 

173, p.  370. 

Swan  v   O'Fullon,  7  Mo.  231,  p.  301. 
>\VL-ct  v.  shumway,  102  Mass.  365, pp.  46, 

353,  275,  375. 

Sweet  v.  Wright,  62  Iowa,  215,  p.  32. 
Sweetser  v.  Lowell,  33  Me.  446,  pp.  293, 

2M, 

Swift  v.  Stevens,  8  Conn.  431,  p.  446. 
Sydleiuau  v.  Beckwith,  43  Conn.  9,  p. 

;i. 

:-ymt-   v.  .-tewart,  17   La.'  Ann.  73,  p.  199. 
Squires  v.   City  of  Chilicothe,  89  Mo. 

•j-j-;,  p.  109. 


T. 


Tait  v.  Hall,  71  Cal.  149,  p.  18. 

Talbot  v.  Seeman,  1  Cranch,  38,  p.  198. 

Tarpeuniug  v.  Corn  Exchange  Ins.  Co., 

43  X.  Y.  279,  pp.  20,  367,  357. 
Tate   v   M.,  K.  &  T.  R.  R.  Co.,  64   Mo.  149, 

p.  373. 
Tatum   v.  Mohr,  21  Ark.  349,  pp.  121,  445, 

47'!. 

Taylor  v  Ashton,  11  M.  &  W.  400,  p.  445. 
Tayli.r  v.   Bunk  of  Illinois,  7  B.   Mon. 

(Ky.)  516,  p.  207. 
Taylor  v.  Commonwealth,  109  Pa.  St.  262, 

pp.  157, 160. 

Taylor  v.  Cook,  8  Price,  650,  p.  310. 
Taylor  v.    French    Lumbering  Co.,  47 

Iowa,  662,  p.  258. 
Taylor  v.  Grand  Trunk  R.  R.  Co.,  48  N. 

H.  304,  pp.  102,  116. 
Taylor  v.  Monnot,  4  Duer  (X.  Y.),  116,  p. 

30. 
Taylor  v.  Henquite,  35  Mo.  App.  389,  402, 

p.  18. 

Taylor  v.  Runyan,  9  Iowa,  522,  p.  199. 
Taylor  v.  Town  of  Monroe,  43  Conn.  36, 

pp.  14,  20,  23,  25. 
Taylor  Will  Case,  10  Abb.  Pr.  (X.  S.)  300, 

p.  338. 
Tebbetts  v.  Haskins,  16  Me.  283,  pp.  20, 

262,  351,  377. 
Terft  v.  \\ilcox,  6  Kan.  46,  pp.  t4,  75. 


Telegraph  Co.  T.  Cooper,  71  Tex.  507,  p. 

119. 
Telephone  Telegraph   Co.  v.   Forke,  2 

Tex.  App.  Civil  Cas.  318,  p.  370. 
Templeton  v.  People,  3  Hun,  357,  p.  455, 

8.  C.,  in  60  X.  Y.  643. 
Tenor  v.  Johnson,  107  Ind.  69,  448. 
Terra  Haute,  etc.  R.  R.  Co.  v.  Crawford, 

100  Ind.  530,  p.  352. 
Territory  v.  Eagan,  3  Dak.  119,  pp.  127, 

131. 
Territt  v.  Woodruff,  19  Vt.  183,  pp.  199, 

205. 
Terry  v.  McXeil,  58   Barb.  (X.  Y.)  241,  p. 

378. 
Texas,  etc.  R.  R.  Co.  v.  Eddy,  42  Ark. 

527,  p.  370. 
Texas,  etc.  R.  R.  Co.  v.  Kirby,  44  Ark. 

103,  p.  370. 

Thatcher  v.  Kaucher,  2  Col.  698,  p.  353. 
Tbayer  v.  Davis,  38  Vt.  163,  p.  59. 
Thayer  v.  Providence  Ins.  Co.,  70  Me. 

639,  p.  249. 

The  Clement,  2  Curtis,  363,  p.  1%. 
The  Scotia,  14  Wall.  171,  pp.  1%,  197. 
Thomas  v.  Mallinekrodt,  43  Mo.  65,  p. 

373. 
Thomas  v.  State,  40  Tex.  65,  pp.  6, 157, 

474. 
Thomas  v.  State,  18  Tex.  Ct  of  App.  213, 

p.  304. 
Thomas  v.  State,   103  Ind.  419,  pp.  288, 

344. 
Thompson  v.  Bennett,  2  Upper  Canada 

(C.  P.),  3v*3,p.  310. 
Thompson  v.  Bertrand,  23  Ark.  730,  pp. 

189, 191. 
Thompson  v.  Boyle,  35  Pa.  St.  477,  pp. 

381,382. 
Thompson  v.  Dickhart,  66  Barb.  (X.  Y.) 

604, p.  367. 
Thompson  v.  Hall,  45  Barb.  (X.  Y.)  216, 

p.  7. 
Thompson  v.  Moiles,  46  Mich.  42,  pp.  350, 

375. 

Thompson  v.  Riggs.  5  Wall.  663,  p.  271. 
Thompson  v.  Trevanion,  Skinner,  4<  2, 

p.  114. 
Tierney  v.  Minnesota,  etc.  R.  R.  Co.,  33 

Minn.  311,  p.  11. 

Tingley  v.  Cowgill,  48  Mo.  294,  p.  Gl. 
Tingley  v.  Providence,  8  R.  I.  493,  p.  370. 
Tinney  v.  Xew  Jersey  Steamboat  Co., 

12  AbD.  Pr.  (X.  S.)  1,  pp.  187,  262,  470. 
Titlow  v.  Titlow,  54  Pa.  St.  216,  p.  156. 
Tobin  v.  Shaw,  45  Me.  331,  p.  10. 
Tolson  v.  Inland  Coasting  Co.,  17  D.  C- 

39,  p.  13. 
Tome  v.  Parkersburg,  etc.  R.  R.  Co.,  39 

Md.  36,  pp.  325,  328,  336. 


xliv 


TABLE    OF    CASES    CITED. 


Tootny  v.  Kay,  62  Wis.  104,  p.  265. 
Topeka  v.  Sherwood,  39  Kan.  690,  p.  13. 
Toulandon  v.  Luchenmeyar,  1   Sweeny 

(N.  Y.),  45,  p.  205. 

Towle  v.  Blake,  48  X.  H.  92,  p.  116. 
Townsdin  v.  Nutt,  19  Kan.  282,  p.  191. 
Townsend  v.  Brundage,  6  Thoinp.,  etc. 

(N.  Y.)  527,  p    364. 
Townsend  v.  Pepperell,  99  Mass.  40,  pp. 

156,  170. 
Tozer  v.  N.  Y.  Central  K.  E.  Co.  38  Hun 

(N.  Y.),100,  p.  121. 
Tracy  Peerage  Case,  10  C.  &  F.  154,  pp. 

302,  463,  465. 

Tracy  v.  Swartout,  10  Pet.  80,  p.  445. 
Transportation   Line  v.  Hope,  95  U.  S. 

297,  pp.  75,  230. 
Travis  v.  Brown,  43  Pa.  St.  9, 13, 14,  pp. 

4,  324,  329. 

Treat  v.  Bates,  27  Mich.  390,  p.  490. 
Trelawney  v.  Coleuiau,  2  Starkie,  168,  p. 

11. 

Truitt  v.  Baird,  12  Kan.  420,  p.  349. 
Tubbs  v.  Garrison,  68  Iowa,  44,  p.  368. 
Tucker  v.  Donald,  60  Miss.  460,  pp.  391, 

402. 
Tucker  v.  Mass.  Cent.  E.  B.  Co  ,  118  Mass. 

546,  p.  40. 
Tucker  v.   Williams,  2  Hilton    (NT.  Y.), 

562,  p.  281. 
Tullis  v.  Kidd,  12   Ala.  648,  pp.  39,  41,  43, 

85, 101." 
Turnbull  v.  Dodds,  6  Dunlop,  901,  pp. 

297,  462. 
Turnbull  v.  Richardson,  69   Mich,  400, 

pp.  66,  68,  78,  88,  381,  382,  383. 
Turner  v.  Hand,  3  Wall.  Jr.  b8,  461. 
Turner  v.  Black  Warrior,  1  McAllister, 

181, p.  146. 
Turner  v.  City  of  Xewburgh,  109  N.  Y. 

301,  pp.  118, 122. 

Turner  v.  Cook,  36  Ind.  129,  p.  6. 
Turner  v.  Kansas  City,  etc.  E.  E.  Co.,  23 

Mo.  App.  13,  p.  158. 
'  Turner  v.  McFee,  61  Ala.  468,  p.  10. 
Turner  v.  Turner,  5  Jur.   (N.  8.)  839,  p. 

439. 
Tuttle  v.  Eainey,  98  N.  C.  513,  pp.  289, 

322. 
Tutton  v.  Darke,5  Hurl.  &  Norman,  647. 

p.  393. 
Trombly  v.  Leach,  11  Cush.  (Mass.)  405, 

pp.  149, 187. 

Twogood  v.  Hoyt,  42  Mich.  609,  p.  255. 
Tyler  v.  State,  11  Tex.  Ct.  of  App.  388,  p. 

267. 
Tyler  v.  Todd,  36  Conn.  218,  pp.  39,  319, 

329. 


Tyler  v.  Trabue,  8  B.  Mon.  (Ky.)  606,  pp. 

199,  201,  214. 
Tyng  v.  Fields,  5  N.  Y.    Sup.  Ct.  672,  p. 

364. 

U. 

Udderzook  v.  Commonwealth,  76  Pa.  St.. 

340,  p.  333. 
Uhler  v.  Semple,  5  C.  E.  Green   (N.  J.), 

288,  p.  199. 
Underwood  v.  Waldron,  33  Mich  23-2,  p. 

263. 
United  Brethren    Mut.   Aid  Society  v. 

O'Hara,  120  Pa.  St.  256,  pp.  190,  191. 
United  States  v.Darnaud,  3  Wall.  Jr.  143, 

p.  461. 
United  States  v.  De  Coursey,  1  Pinney 

(Wis.),  608,  p.  198. 
United  States  v.  Faulkner,  35  Fed.  Rep. 

730, p.  116. 
United  States  v.  Howe,  12  Cent.  L.  J. 

193,  p.  432. 
United  States  v.  Jones,  10  Fed.  Rep.  469, 

p.  340. 
United  States  v.  Kilpatrick,  16  Fed.  Rep. 

765,  p.  39. 
United  Scales  v.  Malloy,  31  Fed.  Rep  19, 

p.  486. 
United  States  v.  Mathias,  36  Fed.  Rep. 

8*2,  pp.  299,  311. 
United  States  v.  McGlue,  1  Curtis  C.  C. 

I,  pp.  122,486. 

United  states  v.  McMillin,  29  Fed.  Rep. 

247,  p.  329. 
United  States  v.  Otega,  4  Wash.  C.  C. 

533, p.  205. 
United  States  v.  Pendergast,  3  Fed.  Rep. 

198,  p.  453. 
United  States  v.  Reading  R.  R.  Co  ,   123 

U.  S.  113,  p.  445. 
United  States  v.  Turner,   11   How.  663, 

pp.  197, 1^8. 
United  States  v.  Wiggins,  14  Pet.  334, 

p.  198. 
Union  lus.  Co.  v.  Smith,  124  U.  S.  405,  pp. 

234,  4HO. 
'  Union  Pacific  R.  R.   Co.  v.  Clopper,  2 

Am.  and  Eng.   R.  R.  Cases,  649,  p. 

252. 
i  Upstone  v.  The  People,  109  111.  169,  pp. 

II,  158. 


V. 


Van  Atta  v.  McKlnney,  16  N.  J  L.  235,  p. 

380. 
Van  Buskirk  v.  Mulock,  18  N.  J.  184,  pp. 

199,  210. 
Van  Deusen  v.  Hooper,  2  Bailey  (S.  C'.> 

Laws,  37,  p.  83. 


TABLE    OF    CASES    CITED. 


xlv 


Van  Hoesen  v.  Cameron,  54  Mich.  609,  p. 

68. 

Van  Horn  v.  Keenan,  28  111.  445,  p.  156. 
Van  Huss  v.  Rainbolt,  42  Tenn.   139,  p. 

156. 

Van  Sickle  v.  People,  29  Mich.  64,  p.  328. 
Van  Wyck  v.  Mclntosh,  14  N.  Y.  439,  pp. 

:;•_".',  343 
Van  Wycklen  v.  City  of  Brooklyn,  41 

Hun  (X.  Y.),418,  p.  24. 
Van  Zanclt  v.  Mut.  Benefit  Life  Ins.  Co., 

55  X.  Y.  179,  p.  61. 
Vender  Donckt  v.  Thelluson.8  Man.  G. 

&  8.  (65  Eng.  C.  L  )  812,  pp.  43,  215. 
Vanrtine  v.  Burpee,  13  Met.  (Mass.)  288, 

p.  264 

Vates  v.  Cornelius,  59  Wis.  615,  p.  193. 
Veerhusele  v.  Chicago,  etc.  R.  R.  Co.,  53 

Wis.  689,  p.  25. 
Vieksbuig,  etc.  R.  R.  Co.  v.  Putnam,  118 

U.  S.  645,  pp.  392,  445. 
Vinton  v.  Peck,  14  Mich.  287,  pp.  301,  320, 

328. 

W. 

Wabash,    etc.    R.   R.    Co.    v.  Pratt,  15 

Bradw.  (111.)  177,  p.  268. 
Waco,  etc.  R.  R.  Co.  v.   Shirley,  45  Tex.  | 

355, p.  365. 

Wade  v.  De  Witt,  20  Tex.  398.  p.  416. 
Wager  v.  Schuyler,  1  Wend.  (N.  Y.)   563,  \ 

pp.  387,  392. 
Wagner  v.  Jacoby,  26  Mo.  530,  pp.  20, 

293. 

Wagner  v.  Ruply,  69  Tex.  700,  p.  323. 
Waite  v.  State,  39  Tex.  Ct.  of  App.  169, 

pp.  128,  130. 
Walker  v.  Fields,  28  Ga.  237,  pp.  52,  68, 

258. 

Walker  v.  Forbes,  31  Ala.  9,  p.  212. 
Walker  v.  Rogers,  24  Md.  237,  p.  64. 
Walker  v.  State,  102  Ind.  502,  p.  168. 
Walker  v.  State.  7  Tex.  Ct.  of  App.  245, 

p.  179. 

Walker  v.  State,  58  Ala.  393,  pp.  10,  257. 
Walker  v.  Steele,  121  Ind.  436,  p.  319. 
Walker  v.  Walker,  14  Ga.  242,  p.  158. 
Wallace  v.  Finch,  24  Mich.  255,  p.  373. 
Wallace  v.  Goodall,  18  X.  H.  439,  p.  256. 
Walsh  v.  Darst,  12  Wis.  635,  p.  199. 
Walsh  v.  Sayre,  52  How.  Pr.  334,  p.  182. 
Walsh  v.  Washington  Marine  Ins.  Co., 

32  X.  Y.  427,  p.  230. 

Ward  v.  Kilpatrick,  85  X.  Y.  413,  p.  263. 
Ward  v.  Salisbury,  12  111.  369,  p.  235. 
Ware  v  Ware,  8  Me.  42,  pp.  401,  444. 
Warren  v.  Anderson,  8  Scott,  384,  p.  287. 
Warren  v.  Spencer  Water  Co.,  143  Mass. 

155,  p.  366. 


Washburn  v.  Railroad,  57  Wis.  364,  pp. 

349,  370,  487. 
Washburn  v,  Cuddihy,  8  Gray,  430,  p. 

413. 
Washington  v.  Cole,  6  Ala.  212,  pp.  39, 

86,  121,  122. 
Washington,    etc.  Co.  v.    Webster,  68 

Me.  449,  p.  353. 
Wattrbury  Brass  Co.  v.   X.  Y.,  etc.  Co., 

3  Fisher's  Pat.  Cas.  43,  p.  270. 
Waters  v.  Waters,  35  Md.  531,  p,  158. 
Watson  v.  Cresap,  1  B.  Mon.  (Ky.)   196, 

p.  345. 

Watson  v.  Davis,  7  Jones,  178,  p.  322. 
Watson  v,  Milwaukee  Ry.  Co.,  57  Wis. 

332,  p.  350. 
Way  v.  Illinois  Cent.  R.  R.  Co.,  40  Iowa, 

341,  p.  13. 
Weane  v.  K.  &  D.  M.  R.  Co.,  45  Iowa,  656, 

p.  29. 
Weaver  v.    Alabama,  etc.  Co.,  38  Ala. 

176, p.  234. 

Webb  v.  Paige,  1  Car.  &  K.  25,  p.  438. 
Webb  v.  State,  9  Tex.  Ct.  App.  490,  p.  59, 

73. 
Webb  v.  State,  5  Tex.  Ct.  of  App.  596,  p. 

157. 

Weber  v.  Creston,  75  Iowa,  16,  p.  191. 
Webber  v.,  Eastern  R.   R.  Co.,  2  Met. 

(Mass.),  147,  p.  374. 

Welch  v.  Brooks,  10  Rich.  (S.  C.)  124,  p. 
Welch  v.  Ins.  Co.,  23  W.  Va.  288,  p.  26. 
Welch  v.  Ware,  32  Mich.  77,  p.  446. 

122. 

Welde  v.  Welde,  2  Lee,  580,  p.  172. 
Wellman  v.  Wellman,  8  C.  &  P.  380,  p. 

287. 

Wells  v.  Eastman,  61  X.  H.  507,  p.  265. 
Wendell  v.  Troy,  39  Barb.  (X.  Y.)   329, 

p.  188. 
West  v.  State,  22  X.  J.  Law,  241,  pp.  310, 

326,  329. 
WestXewhury  v.  Chase,  5  Gray(Mass.), 

421, p.  373. 
Western  Ins.  Co.  v.  Tobin,  32  Ohio  St. 

77,  pp.  230,  231. 

Western  Union  Telegraph  Co.  v.  Coop- 
er, 71  Tex.  507,  p.  188. 

Westmore.v.  Sheffield,  166  Vt.  239,  p.  158. 
Weston  v.  Foster,  2  Curt.  C.  C.  119,  p. 

23*. 
Westover  v.  .Etna  Life  Ins.  Co.,  99  X.  Y. 

56,  p.  109. 
Wetherbee's     Exrs.     v.     Wetherbee's 

Heirs,  38  Vt.  464,  p.  113. 
Whelan  v.  Lynch,  60  X.  Y.  469,  p.  378. 
White  v.  Bailey,  10  Mich.  155,  p.  18,  81, 

165. 

White  v.  Ballou,  8  Allen,  408,  pp.  16,  25. 
White  v.  Clemens,  39  Ga.  232,  p.  278. 


xlvi 


TABLE    OF    CASES    CITED. 


White  Deer  Creek  Improvement  Co.  v. 

Sassman,  67  Pa.  St.  415,  pp.  368,  370. 
White  v.  Graves,  107  Mass.  3-25,  pp.  87, 

169. 
White  v.  Milwaukee,  etc.  R.  R.  Co.,  61 

Wis.  636,  p.  183. 
Whitman  v.  Boston,  etc.   R.   R,  Co.,  7 

Gray,  313,  p.  373. 

Whitcomb  v.  State,  41  Tex.  125,  p.  157. 
Whitmore  v.  Bishoff,  5  Hun  (X.  Y.),  176, 

p.  367. 
Whitmore  v.    Bowman,    4    G.    Greene 

(Iowa),  148,  pp.  20,  367. 
Whitney  v.  Chicago  &  N.  W.  R.  R.  Co., 

27  Wis.  327,  p.  278. 
Whitney  v.  City  of  Boston,  98  Mass.  3io, 

p.  356. 
Whitney  v.  Thatcher,  117  Mass.  526,  p. 

377. 
Whitbeck  v.  X.Y.,  etc.  R.  R.  Co.,  36 Barb. 

(X.  Y.)  644,  p.  359. 
Whitesell  v.  Crane,  8  W.  &  S    (Penn.) 

372, p.  353. 
Whltesides  v.  Poole,  9  Rich.  (S.  C.)  68, 

p.  199. 
Whitfleld  v.  Whitfleld,  40  Miss.  352,  p. 

353. 

Whitsett  v.  Chicago,  etc.  R.   R.  Co  ,  67 

Iowa,  150,  p.  239. 

Whittaker  v.  P*arker,  42  Iowa,  586,  p.  460. 
Whittier  v.  Franklin,  46  X.  H.  23,  p.  12. 
Whittlesey  v.  Kellogg,  28  Mo.  404,  p.  255. 
Wiggins  v.  Henson,  68  Ga.  819,  p.  10. 
Wiggins  v.  Wallace,  19  Barb.  (X.  Y.)  700, 

pp.56,  281. 

Wilber  v.  Eicboltz,  5  Gal.  240,  p.  318. 
Wilcox  v.  Hall,  53  Ga.  635,  p.  145. 
Wilcox  v.  Leake,  11  La.  Ann.  178,  p.  367. 
Wilcocks  v.  Phillips,  1  Wall.  Jr.  49,  p. 

215. 

Wilder  v.  Decou,  26  Minn.  10,  p.  276. 
Wilkenson  v.  Mosely,  30  Ala.  562,  pp.  11, 

118, 189. 
Wilkenson  v.  Pearson,  23  Pa.  St.  117,  p. 

158. 
Willey  v.  Portsmouth,  35  N.  H.  303,  pp. 

64, 121. 
Williams  v.  Brown,  28  Ohio  St.  547,  pp. 

64.  67,  380,  381. 
Williams  v.  Conger,  125  U.S.  397,  pp.  311, 

323. 

Williams'  Case,  1  Lewin,  137,  p.  340. 
Williams  v.  Lee,  47  Md.  321,  pp.  156, 158. 
Williams'v.  Poppleton,  3  Oreg.  139,  p. 

274. 

Williams  v.  Souther,  7  Iowa,  435,  p.  18. 
Williams  v.  State,  64  Md.  384,  pp.  65,  74, 

80, 127, 130. 

Williams  v.  State,  61  Ala.  33,  p.  341. 
Williams  v.  State,  50  Ark.  511,  p.  486. 


Williams  v.  Taunton,  125    Mass.  34,  p. 

146. 

Williams  v.  Williams,  3  Beav.  547,  p.  219. 
Williamson  v.  Yingling,  80  Ind.  379,  p. 

258. 
Witlings  v.  Consequa,  1  Pet.  C.  C.  225,  p. 

205. 
Wilson  v.  Bauman,  80  111.  493,  pp.   263, 

271,  272. 
Wilson  v.  Beauchamp,  50  Miss.  21,  pp. 

321,  329. 
Wilson  v.  Belts,  4  Denio   (X.  Y.),  2"1,  p. 

310. 

Wilson  v.  Carson,  12  Md.  54,  pp.  214,  225. 
Wilson  v.  Irish,  62  Iowa,  26u,  p.  317. 
Wilsou  v.  Smith,  13  Tenn.  399,  p.  214. 
Wilson  v.  State,  41  Tex.  320,  p.  188. 
Wilson  v.  State,  52  Ala.  299,  p.  90. 
Wilson  v.  Town  of  Granby,  47  Conn.  59, 

p.  115. 
Wilson  v.  Van  Leer,  127  Pa.   St.   372,  p. 

394. 
Wilt  v.  Vickers,  8  Watts  (Pa.)  ,  227,  p. 

130. 
Winans  v.  X.Y.  &  Erie  R.  R.  Co.,  21  How. 

88,  p.  270. 

Winch  v.  Xorman,  65  Iowa,  186,  p.  317. 
Winn  v.  Patersou,  9  Pet.  663,  p.  286. 
Winter  v.  Burt,  31  Ala.  33,  p.  364. 
Winter  v.  City  Council,  79  Ala.  451,  pp. 

9,33. 

Wise  v.  Foote,  81  Ky.  10,  pp.  158, 160. 
Wogan  v.  Small,  11  S.  &  R.   (Penn.)  141, 

p.  156. 
Wood  v.  Barker,  49  Mich.  295,  pp.  489, 

490. 

Wood  v.  Brewer,  57  Ala.  515,  p.  384. 
Woodv.  Chicago,  etc.  R.  R.  Co.,  40  Wis. 

582,  p.  6. 
Wood  v.  Sawyer,  Phillips  (X.  C.),  253,  p. 

113. 

Wood  v.  State,  58  Miss.  741,  pp.  158, 160. 
Woods  v.  Allen,  18  X.  H.  28,  p.  258. 
Woodbridge  v.  Austin,  2  Tyler    (Vt.), 

364, p.  205. 
Woodbury  v.  Obear,  7  Gray,  467,  pp.  64, 

75. 
Woodcock  v.  Houldsworth,  16  M.  &   W. 

124,  p.  280. 
Woodcock  v.  Johnson,  36  Minn.  217,  pp. 

158,  165. 
Wooden  v.  People,  1  Parker  Cr.Oas.  464, 

p.  153. 
Woodman  v.  Dana,  52  Me.  9,  pp.  39,  286, 

320,  329,  332. 

Woodrow  v.  O'Conner,  28  Vt.  776,  p.  199. 
Woodruff  v.  Imperial  Fire  Ins.  Co.,  83 

X.  Y.  133,  p.  363. 
Woodward  v.  Bugsbee,  4  X.  Y.  Sup.  Ct. 

393, p.  386. 


TABLE    OF    CASES    CITED. 


xlvii 


Woodward  v.  Spiller,  1   Dana,   180,  p. 

328. 
Woodward    v.    The    State,    4    Baxter 

(Tenn.),  322,  p.  10. 
Woolner  v.  Spauldlng,  65  Miss.  204,  pp. 

66,  67. 
Worden  v.  Humeston,  etc.  R.  R.  Co.,  76 

Iowa,  310,  p.  392. 
Worth  v.  McConnell,  42  Mich.  475,  pp. 

311,  320,  328. 
Wright  v.  City  of  Fort  Howard,  60  Wis. 

119,  p.  169. 

Wright  v.  Hardy,  22  Wis.  348,  pp.  70, 149. 
Wright  v.  Hessey,  3  Baxter,  42,  p.  329.   • 
Wright  v.  Per  pie,  112  111.  540,  p.  437. 
Wright  v.  Williams'  Estate,  47  Vt.  222, 

pp.  44,  54,  55,  460. 

Wyman  v.  Gould,  47  Me.  159,  p.  156. 
Wyraan  v.  Lexington,  etc.  R.  R.Co.,  13 

Met.  (Mass.)  216,  p.  353. 
Wynne  v.  State,  56  Ga.  113,  p.  282. 
Wynne  v.  Tyrwhitt,  4  B.  &  Aid.  376,  p. 

286. 


Y. 

Yahn  v.  City  of  Ottumwa,  60  Iowa,  429, 

p.  8. 
Yates  v.  Waugh,  1  Jones  (N.  C.)  Law, 

483, p.  301. 
Yates  v.  Yates,  76  N.  C.  142,  pp.  53,  289, 

298,  322. 
Yeatman  v.  Hart,    6   Humph.    (Tenn.) 

374, p.  116. 
Yoe  v.  The  People,  49  111.  410,  pp.  417, 

419. 
York  v.  The  People,  31  Hun  (M.  Y.),  446, 

448,  p.  7. 
Young  v.  Johnson,  46  Hun  (N.  Y.),164, 

p.  155. 
Young  v.  Makepence,  103  Mass.  50,  p. 

187. 

Young  v.  O'Neal,  57  Ala.  566,  p.  264. 
Yost  v.  Conroy,  92  Ind.  464,  pp.  367,  369. 

Z. 

Zimmerman  v.  Hesler,  32  Md.  274,  p.  205. 
Zube  v.  Weber,  67  Mich.  52,  p.  6. 
Zugasti  v.  Lamer,  12  Moore  P.C.  331,  pp. 

197,  23U,  231. 


CHAPTER  I. 


THE   ADMISSIBILITY  EN   EVIDENCE   OF   THE   OPINIONS  OF 
ORDINARY  AND  EXPERT  WITNESSES. 

SECTION. 

1.  The  Term  Expert  Defined. 

2.  The  Practice  of  Admitting  Expert  Testimony  an  Ancient  One. 

3.  The  Competency  of  Non -Professional  Witnesses  to  Give  Opinion 

Evidence. 

4.  The  Admissibility  in  Evidence  of  the  Opinions  of  Non-Professional 

Witnesses  in  Cases  of  Necessity. 

5.  The  Inadmissibility  of  Opinion  Evidence. 

6.  When  Expert  Testimony  is  Admissible. 

7.  Meaning  of  the  Terms  Science  and  Art. 

8.  When  the  Opinions  of  Experts  are  Inadmissible. 

9.  The  Question  of  the  Admissibility  of  Expert  Testimony  is  for  the 

Court. 

10.  Cases  Illustrative  of  the  Inadmissibility  of  the  Opinions  of  Experts. 

11.  The  Inadmissibility  of  Opinions  Founded  on  a  Theory  of  Morals 

or  Duty. 

12.  The  Inadmissibility  of  Opinions  on  Abstract  Questions  of  Science, 

not  Related  to  the  Facts  in  Issue. 

13.  Inadmissibility  of  Opinions  Based  on  Speculative  Data. 

14.  Admissibility  of  the  Testimony  of  Experts  Who  Have  Made  Ex 

Parte  Investigations. 


§  1.  The  Term  "Expert"  Defined. — The  phrase 
"expert  testimony"  is  not  applicable  to  all  species 
of  opinion  evidence.  A  witness  is  not  giving  ''ex- 
pert testimony"  who,  without  any  special  personal 
fitness,  or  special  intelligence,  simply  testifies  as  to 
the  impressions  produced  on  his  mind  or  senses  by 


'2  EXPERT    TESTIMONY. 

that  which  he  has  seen  or  heard  and  which  can 
only  be  described  to  others  by  giving  the  impression 
produced  upon  the  witness.  Neither  is  a  person 
giving  ' 'expert  testimony,"  strictly  speaking,  when 
he  is  testifying  as  to  matters  which  require  no  pe- 
culiar intelligence  and  concerning  which  any  per- 
son is  qualified  to  judge  according  to  his  opportuni- 
ties of  observation.  "Expert  testimony"  properly 
begins  with  testimony  concerning  those  "branches 
of  business  or  occupations  where  some  intelligence 
is  requisite  for  judgment"  and  when  "opportunities 
and  habits  of  observation  must  be  combined  with 
some  practical  experience."  And  in  the  case  cited 
it  is  said  that  "the  scale  rises  as  the  qualifications 
become  nicer,  and  require  greater  capacity  or 
knowledge  and  experience,  until  it  reaches  scientific 
observers,  and  practitioners  in  arts  and  sciences 
requiring  practice  and  thorough  special  training." 
An  expert  is  one  who  is  skilled  in  any  particular 
art,  trade,  or  profession,  being  possessed  of  peculiar 
knowledge  concerning  the  same.  Strictly  speaking, 
:an  "expert"  in  any  science,  art,  or  trade,  is  one 
who,  by  practice  or  observation  has  become  experi- 
enced therein.  An  expert  has  been  defined  as  "a 
person  of  skill;"2  as  "a  skillful  or  experienced  per- 
son; a  person  having  skill,  experience,  or  peculiar 
knowledge  on  certain  subjects,  or  in  certain  profes- 
sions; a  scientific  witness."  "An  expert"  said 
Mr.  Justice  FOLGER,  "is  one  instructed  by  experi- 
ence, and  to  become  one,  requires  a  course  of  pre- 
vious habit  and  practice,  or  of  study,  so  as  to  be 

*  See  Kelly  v.  Richardson,  69  Mich.  430. 

*  Rochester  v.  Chester,  3  N.  H.  349,  365. 
3  Heald  v.  Thing,  45  Me.  392,  394. 


EXPERT        DEFINED.  6 

familiar  with  the  subject."  '  "All  persons,  I  think," 
said  Mr.  Justice  MAULE,  "who  practice  a  businos< 
or  profession  which  requires  them  to  possess  a  cer- 
tain knowledge  of  the  matter  in  hand,  are  experts 
so  far  as  expertness  is  required."  And  this  lan- 
guage has  been  adopted  by  the  court  in  Virginia.3 
In  New  Hampshire,  we  find  Mr.  Justice  DOE  de- 
claring: "An  expert  must  have  made  the  subject 
upon  which  he  gives  his  opinion  a  matter  of  par- 
ticular study,  practice  or  observation,  and  he  must 
have  particular  special  knowledge  on  the  subject." 
While  Mr.  Chief  Justice  AMES,  of  Rhode  Island, 
says:  "Knowledge  of  any  kind,  gained  for  and  in 
the  course  of  one's  business  as  pertaining  thereto, 
is  precisely  that  which  entitles  one  to  be  considered 
an  expert,  so  as  to  render  his  opinion,  founded  on 
such  knowledge,  admissible  in  evidence."  "An 
expert,"  says  the  court  in  Vermont,  through  Mr. 
Justice  ROYCE,  "is  defined  to  be  a  person  that  pos- 
sesses peculiar  skill  and  knowledge  upon  the  sub- 
ject-matter that  he  is  required  to  give  an  opinion 
upon."6  As  defined  by  Mr.  Chief  Justice  SHAW  in 
Massachusetts,  an  "expert  is  a  person  of  large  expe- 
rience in  any  particular  department  of  art,  business 
or  science."  As  stated  by  Mr.  Justice  REDFIELD 
in  his  edition  of  Greenleaf  s  Evidence,  "The  term 
'expert'  seems  to  imply  both  superior  knowledge 
and  practical  experience  in  the  art  or  profession; 

1  Nelson  v.  Sun  Mutual  Ins.  Co.,  71  X.  Y.  453,  460. 

2  Vaneler  Donckt  v.  Thellusson,  8  Man.  G.  &  S.  (65  Eng.  C.  L.)  812. 

3  Bird  v.  Commonwealth,  21  Gratt.  800. 

4  Jones  v.  Tucker,  41  N.  H.  546. 

5  Buffum  v.  Harris,  5  R.  I.  250. 
«  State  v.  Phair,  48  Vt.  636,  377. 

7  Dickensou  v.  Fitchburg,  13  Gray,  546,  555. 


4  EXPERT    TESTIMONY. 

but  generally,  nothing  more  is  required  to  entitle 
one  to  give  testimony  as  an  expert,  than  that  he 
has  been  educated  in  the  particular  art  or  profes- 
sion." !  For  persons  are  presumed  to  understand 
questions  pertaining  to  their  own  profession  or 
business.2  As  the  opinions  of  experts  may  rest 
either  on  their  personal  knowledge,  or  on  facts  tes- 
tified of  by  other  witnesses,3  it  is  error  to  assume,  as 
is  done  in  one  case,4  that  an  expert  is  one  who  sim- 
ply testifies  from  premises  furnished  by  the  testimony 
of  other  witnesses.  One  court  says  that  no  in- 
dividual can  be  considered  an  expert  who  does 
not  thoroughly  understand  the  sciences  involved.5 

§  2.  The  Practice  of  Admitting  Expert  Testimony 
an  Ancient  One. —  The  practice  of  admitting  the 
evidence  of  witnesses,  who  have  become  qualified 
by  study  and  experience  to  express  opinions  upon 
questions  of  science  and  art,  is  by  no  means  peculiar 
to  modern  times.  By  the  Roman  law,  persons  who 
were  artis  periti  could  be  summoned  by  the  judex  at 
his  discretion,  in  order  to  inform  himself  as  to  phys- 
ical laws  or  phenomena.6  And  the  celebrated 
criminal  code  framed  by  the  Emperor  Charles  the 
Fifth,  at  Ratisbon  in  1532,  contained  a  formal 
enactment  requiring  the  opinion  of  medical  experts 
to  be  taken  in  all  cases  where  death  was  supposed 


1 1  Greenl.  Evid.,  §  440. 

2  Jones  v.  White,  11  Humph.  268.  And  see  State  v.  Clark,  15  S.  C. 
(N.  8.)  403,  408. 

8  Snow  v.  Boston,  etc.  R.  R.  Co.,  65  Me.  230,  232;  Lessee  of  Forbes  v. 
Caruthers,  3  Yeates,  527;  Polk  v.  State,  36  Ark.  117,  124, 125. 

*  Travis  v.  Brown,  43  Pa.  St.  9,  13,  14. 

5  Allen  v.  Hunter,  6  McLean,  303,  310. 

6  L.  8.  §  1,  x.  1 ;  L.  3,  §  4,  xi.  6;  L.  3,  Cod.  fin.  reg.,  iii.  39.    Endeman, 
243. 


ANCIENT     PRACTICE.  O 

to  have  been  occasioned  by  violent  means.1  In 
1606,  Henry  the  Fourth,  of  France,  in  giving  letters 
patent  to  his  first  physician,  conferred  on  him  the 
power  of  appointing  two  surgeons  in  every  city  or 
important  town,  whose  duty  it  should  exclusively 
be  to  examine  all  wounded  or  murdered  men,  and 
report  thereon.2  While  in  England  one  of  the  early 
records  shows,3  that  on  an  appeal  of  mayhem,  the 
defendant  prayed  the  court  to  see  the  wound  for  the 
purpose  of  determining  whether  there  had  been  a 
maiming  or  not,  but  the  court  did  not  know  how  to 
decide,  as  the  wound  was  new;  and  thereupon  the 
defendant  took  issue,  and  prayed  the  court  that  the 
mayhem  might  be  examined.  A  writ  was  accord- 
ingly sent  to  the  sheriff  to  cause  to  come,  medicos 
chirurgicos  de  melioribus,  London,  ad  informandum 
dominum  regem  et  curiam  de  his,  qua  Us  ex  parte 
domini  regis  injungerentur.  And,  in  1553,  Mr. 
Justice  SAUNDERS  is  reported  as  saying:  "If  matters 
arise  in  our  law  which  concern  other  sciences  or 
faculties,  we  commonly  apply  for  the  aid  of  that 
science  or  faculty  which  it  concerns,  which  is  an 
honourable  and  commendable  thing  in  our  law,  for 
thereby  it  appears  that  we  don't  despise  all  other 
sciences  but  our  own,  but  we  approve  of  them,  and 
encourage  them  as  things  worthy  of  commenda- 
tion." Instances  are  recorded  in  the  Year  Books, 
where  the  courts  received  the  opinions  of  witnesses 
learned  in  the  sciences  and  arts.5 


1  See  2  Beck's  Med.  Juris.  896. 

2  Fodere,  Introduction,  Vol.  1,  p.  32. 

3  28  Ass.  pi.  5. 

*  Buckley  v.  Rice,  1  Plowden,  125. 
5  9  H.  716;  711.  6.  11. 


6  EXPERT    TESTIMONY. 

§3.  The  Competency  of  Non-Professional  Witnesses 
to  Give  Opinion  Evidence. — The  rule  admitting  the 
testimony  of  experts  is  exceptional,1  for  no  principle 
of  the  law  is  better  settled  than  that  the  opinions  of 
witnesses  are,  in  general,  inadmissible  in  evidence.2 
They  must  state  facts  and  not  opinions  deduced 
from  the  facts;  for  it  is  the  peculiar  province  of  the 
jury  to  determine  upon  the  inferences  which  are  to 
be  drawn  from  the  facts.  But  to  this  general  rule 
there  are  well  recognized  exceptions.  Experience 
has  demonstrated  the  difficulty  which  exists  in  cer- 
tain cases,  of  stating  the  facts  in  detail  to  the  jury 
in  such  a  manner,  that  they  shall  produce  the  same 
impression  upon  the  minds  of  the  jurymen  that  they 
have  legitimately  produced  upon  the  minds  of  the 

1  Ellingwood  v.  Bragg,  52  N.  H.  488;  Polk  v.  State,  36  Ark.  117,  125. 

*  Continental  Ins.  Co.  v.  Delpench,  82  Pa.  St.  225;  Frost  v.  Blanch- 
ard,  97  Mass.  155;  Hames  v.  Brownlee,  63  Ala.  277;  Fitzgerald  v.  Hay- 
ward,  50  Mo.  516;  Holden  v.  Robinson  Co.,  65  Me.  216;  Thomas  v. 
State,  40  Tex.  36;  Lawrence  v.  Hudson,  59  Tenn.  671;  Benedict  v.  City 
of  Fon  du  Lac,  44  Wis.  495;  Cummins  v.  State,  58  Ala.  387;  Lewis  v. 
Brown,  41  Me.  448;  Scaggs  v.  Baltimore,  etc.  R.  R.  Co.,  10  Md.  268; 
Higgins  v.  Carlton,  28  Md.  115;  Hayes  v.  Wells,  34  Md.  513;  Babcock  v. 
Middlesex  Savings  Bank,  28  Conn.  306;  McKnight  v.  State,  6  Tex.  Ct. 
of  App.  162;  Seibles  v.  Blackwell,  1  McM.  (S.  C.)  57;  Dawson  v.  Cal- 
laway,  18  Ga.  573;  Hawkins  v.  State,  25  Ga.  207;  Central  Railroad,  etc. 
v.  Kelly,  58  Ga.  107;  Rochester  v,  Chester,  3  N.  H.  364;  Patterson  v. 
Colebrook,  9  Foster  (N.  H.),  94;  Daniels  v.  Mosher,  2  Mich.  183;  Griffin 
v.  Town  of  Willow,  43  Wis.  509;  Wood  v.  Chicago,  etc.  R.  R.  Co.,  40 
Wis.  582;  Montgomery  v.  Town  of  Scott,  34  Wis.  338;  Holliman  v  Ca- 
banue,  43  Mo.  568;  Bailey  v.  Pool,  13  Ired.  (N.  C.)  406;  New  Albany, 
etc.  R.  R.  Co.  v.  Huff,  19  Ind.  315;  Robinson  v.  Fitchburg,  etc.  R.  R. 
Co.,  7  Gray  (Mass.),  92;  Forbes  v.  Caruthers,  3  Yeates,  527;  Merritt  v. 
Seaman,  6  N.  Y.  168;  Berckman  v.  Berckman,  16  N.  J.  Eq.  122;  Corlis 
v.  Little,  13  N.  J.  Law,  232;  Massachusetts  Life  Ins.  Co.  v.  Eshelman, 
30  Ohio  St.  647;  Turner  v.  Cook,  36  Ind.  129;  Shepard  v.  Pratt,  16  Kan. 
209;  Koons  v.  St.  Louis  &  Iron  Mountain  R.  R.  Co.,  65  Mo.  592;  Mas- 
check  v.  St.  Louis  R.  R.  Co.,  1  Mo.  App.  600;  Gassenheimer  v.  State. 
52  Ala.  314;  McAdory  v.  State,  59  Ala.  92;  Houston,  etc.R.  R.  Co.  v- 
Smith,  52  Tex.  178;  Jasper  Co.  v.  Osborne,  59  Iowa,  208;  Zubev.  Weber, 
67  Mich.  52. 


OPINIONS    OF    NON-PROFESSIONAL    WITNESSES.  I 

witnesses.  So  that  from  the  very  necessities  of  the 
case,  it  is  sometimes  found  essential  that  the  opin- 
ions of  ordinary  witnesses  should  be  received,  as 
otherwise  it  would  be  impossible  to  arrive  at  any 
accurate  conclusion  as  to  the  facts  involved. 

The  dividing  line  between  what  is  a  fact  and  what 
is  an  opinion  cannot  be  very  clearly  defined,  and 
while  the  general  rule  only  allows  an  ordinary  wit- 
ness to  testify  to  facts  and  not  to  express  opinions, 
yet  it  is  not  to  be  overlooked  that  that  which  is  nec- 
essarily but  an  opinion  may  be  a  fact  concerning 
which  an  ordinary  witness  can  testify.  Thus  it  has 
been  held  that  the  question  whether  a  team  can  be 
turned  in  a  road,  or  a  certain  thing  pass  through  a 
door  or  other  opening,  while  necessarily  but  an  opin- 
ion, is  also  a  fact  as  to  which  an  ordinary  witness 
can  testify.1  So  a  witness  is  allowed  to  testify  as  a 
fact  to  the  financial  standing  of  another,2  while  the 
opinion  of  the  witness  as  to  such  person's  financial 
standing  has  been  held  inadmissible.8 

When  it  is  sought  to  introduce  in  evidence  the 
opinions  of  non-professional  witnesses,  it  becomes 
necessary  for  the  court  to  determine  certain  prelim- 
inary questions  before  such  testimony  can  be  given. 

1.  The  court  must  decide  whether  the  subject- 
matter  to  which  the  testimony  relates  is  of  such  a 
nature  as  to  warrant  the  introduction  of  opinion 
evidence  from  non-professional  witnesses.  In  de- 
ciding that  question  the  court  will  be  governed  by 
the  following  principles  : 

(a.)     It  is  competent  for  a  witness  to  state  his 


1  Funston  v.  Chicago,  etc.  R.  R.  Co.,  61  Iowa,  452  (1883). 

2  Thompson  v.  Hall,  45  Barb.  (N.  YJ  21G. 

3  York  v.  The  People,  31  HUU  (N.  Y.)  446,  448. 


8  EXPERT    TESTIMONY. 

opinion  in  evidence  when  the  primary  facts  on  which 
it  is  founded  are  of  sucli  a  nature  that  they  cannot 
be  adequately  reproduced  or  described  to  the  jury,  so 
as  to  enable  another  than  the  actual  observer  to 
form,  an  intelligent  conclusion  from  them.1 

(6.)  And  when  the  facts  upon  which  the  witness 
is  to  express  his  opinion  are  of  such  a  nature  that  men 
in  general  are  capable  of  comprehending  and  under- 
standing them.2  If  they  are  not  of  that  nature  the 
opinions  of  ordinary  witnesses  could  not  be  received, 
but  the  opinions  would  have  to  come  from  men  of 
science  or  skill. 

2.  It  having  been  determined  by  the  court  that 
the  subject-matter  to  which  the  testimony  relates 
warrants  the  admission  of  opinion  evidence  from 
ordinary  witnesses,  the  court  must  then  determine 
whether  the  witness  in  question  is  competent  to  ex- 
press an  opinion.  The  qualifications  of  the  witness 
to  express  an  opinion  should  be  made  to  appear  to 
the  satisfaction  of  the  court.  The  witness  must  first 
state  the  facts  and  his  means  of  observation,  and 
the  court  may  then  decide  whether  the  facts  testified 
to  and  his  means  of  observation  are  such  as  to  justify 
the  expression  of  an  opinion.3 

A  witness,  who  is  not  an  expert,  is  not  allowed  to 
express  an  opinion  unless  he  has  a  personal  knowl- 
edge of  the  facts  on  which  the  opinion  is  based.  He 
cannot  express  an  opinion  on  facts  testified  to  by 

1  Yahn  v.  City  of  Ottumwa,  60  Iowa,  429;  The  Atchisou,  etc.  R.  R. 
Co.  v.  Miller.  39  Kan.  419,  421;   State  v.  Baldwin,  36  Kan.  2;  Railroad 
Co.  v.  Schultz,  43  Ohio  St.  270,  282;  City  of  Parsons  v.  Lindsay,  26 
Kan.   426;  Cavendish  v.  Troy,  41   Vermont,  108;  State  v.   Folwell,  14 
Kan.  105;  Bates  v.  Sharon,  45  Vermont,  474. 

2  See  Commonwealth  v.  Sturtivant,  117  Mass.  122,  137. 

3  First  National   Bank   v.  Wirebach,  106   Pa.  St.  37.  44:  People  v. 
Levy,  71  Cal.  618. 


OPINIONS    OF    NON-PROFESSIONAL   WITNESSES.  9 

other  witnesses,  nor  in  answer  to  a  hypothetical 
case.1  As  his  opinion  is  based  on  facts  within  his 
personal  knowledge,  he  is,  as  a  rule,  required  to 
state  the  facts  as  fully  as  he  may  be  able,  and  hav- 
ing done  so,  he  is  then  allowed  to  state  his 
opinion  based  on  the  facts  so  testified  to.2  But  in 
some  cases  it  is  impossible  in  the  nature  of  things 
to  describe  the  facts,  and  the  opinion  of  the  witness 
will  not  be  excluded  in  such  case  because  of  his 
inability  to  give  a  description  of  the  facts.  For  in- 
stance, in  questions  relating  to  identity  of  persons, 
the  identification  may  be  by  the  mere  expression 
of  the  countenance,  which  cannot  be  described. 
And  the  witness  may  be  correct  although  unable  to 
describe  a  single  feature,  or  to  give  the  color  of  the 
hair,  or  of  the  eyes,  or  the  particulars  of  the  dress. s 

§  4.  The  Admissibility  in  Evidence  of  the  Opin- 
ions of  Non-Professional  Witnesses  in  Cases  of  Neces- 
sity.— We  have  stated  in  the  preceding  section  that 
ordinary  witnesses  are  allowed  to  express  opinions 
based  on  facts  within  their  personal  observation 
when  the  facts  cannot  be  so  described  as  to  enable 
another  to  draw  any  intelligent  conclusion  therefrom. 
Opinions  in  such  cases  must  be  received  in  evidence 
from  the  necessities  of  the  situation.  The  cases  are 


1  Winter  v.  City  Council,  79  Ala.  481;    Bell  v.  McMaster,  29   Hun  (N. 
Y.)   272;  Pittard  v.  Foster,  12  111.  App.  132;  Appleby  v.  Brook,  76  Mo. 
314;  Eyerman  v.  Sheehan,  52  Mo.  221;  Sydleman  v.  Beckwith,  43  Conn. 
9. 

2  Carthage  Turnpike  Co.  v.  Andrews,  102   Ind.  138;  Jones  v.  Fuller, 
19  S.  C.   (N.  s.)  66;   Railroad  Co.  v.  Schultz,  43   Ohio  St.  270,  282; 
Shaver  v.   McCarthy,  110  Pa.  St.   339;  Goodwin  v.  State,  96  Ind.  500; 
American  Bible  Society  v.  Price,  115  111.  623;  Pinney's  Will,  27   Minn. 
280;  State  v.  Erb,  74  Mo.  199. 

See  Sydleman  v.  Beckwith,  43  Conn.  9, 13. 


10  EXPERT    TESTIMONY. 

not  a  few  in  which  the  opinions  of  ordinary  wit- 
nesses are  admissible. 

1.  An  ordinary  witness  may  express  an  opinion 
concerning  the  age  of  a  person  whom  he  has  seen.1 

2.  And  the  identity  of  a  person  or  thing  which  he 
has  observed.2 

3.  Concerning  the  appearance  of  a  person.     As 
to  whether  he  appeared  to  be  sober  or  intoxicated 
when  the  witness  sawT  him,3  and  this  without  show- 
ing that  the  witness  had  any  previous  knowledge  of 
the    habits   and    conduct   of  such    person.4     As  to 
whether  a  person  appeared  angry  or  not;5  or  sad;6  or 
nervous,   and  showed  fear  or  manifested  grief;7  or 

1  CommoDwealth  v.  O'Brien,  134  Mass.  198;  Foltz  v.  The  State,  3& 
Ind.  215;  Morse  v.  The  State,  6  Conn.  9;  DeWitt  v.  Bailey,  17  N.  Y. 
344;  Benson  v.  McFaddon,  50  Ind.  431;  Kansas  Pacific  R.  R.  Co.  v. 
Miller,  2  Colo.  442;  Marshall  v.  State,  49  Ala.  21. 

2  Walker  v.  The  State,  58  Ala.  393;  Wiggins  v.  Henson,  68  Ga.  819; 
State  v.  Babb,  76  Mo.  501;  King  v.  N.  Y.  Cent.  R.  R.  Co.,  72  N.  Y.  607; 
Woodward  v.  The  State,  4  Baxter  (Tenn.),  322;  Turner  v.  McFee,  61 
Ala.  468;    Beverly  v.  Williams,  4  Dev.  &  Bat.  (N.  C.)  236;  Common- 
wealth v.  Sturtivant,  117  Mass.  133;  and  in  Commonwealth  v.  Williams,. 
105  Mass.  62,  where  there  was  identification  of  a  burglar  by  his  voice. 
In  Beale  v.  Posey,  72  Ala.  323,  that  witness  knew  and  recognized  the 
walk  of  another.    And  so  witnesses  can  express  an  opinion  that  certain 
foot-prints  correspond  with  certain  boots.    Commonwealth  v.  Pope,  103 
Mass.  440;  State  v.  Morris,  84  N.  C.  756.    And  that  certain  tracks  were 
made  by  a  certain  person.     State  v.  Reitz,  83  N.  C.  634.    In  the  case 
just  cited,  the  court  remarks :     "The  bare  opinion  of  a  witness  as  to  the 
identity  of  the  tracks  should  have  no  weight  with  a  jury;  but  when  the 
witness  gives  his  reasons  for  entertaining  the  opinion,  the  whole  of  the 
testimony  should  be  allowed  to  go  to  the  jury,  for  them  to  say  whether 
the  grounds  of  the  opinion  are  reasonable  and  satisfactory."    So,  too, 
a  witness  has  been  allowed  to  testify  that  certain  tracks  were  made  by 
a  certain  wagon.    State  v.  Folwell,  14  Kan.  105. 

3  People  v.  Monteith,  73  Cal.  7;  State  v.  Huxford,47Iowa,16;  People 
v.Eastwood,  14  X.  Y.  562;  Stacy  v.  Portland  Publishing  Co.,  68  Me. 
279;  City  of  Aurora  v.  Hill  man,  90  111.  66. 

4  Castner  v.  Sliker,  33  N.  J.  L.  95;  s.  c.,  Ibid.  507. 

5  Jenkins  v.  The  State,  82  Ala.  25;  State  v.  Shelton,  64  Iowa,  333. 

6  Culver  v.  Dwight,  6  Gray  (Mass.),  444;  Tobin  v.  Shaw,  45  Me.  331. 
1  State  v.  Baldwin,  36  Kan.  1.    And  see  Brownell  v.  People,  38  Mich. 

732. 


OPINIONS    OF    NON-PROFESSIONAL    WITNESSES.         11 

seemed   excited;1  or  appeared  to  be  suffering  pain;* 
or  appeared  attached  to  another.3 

4.  Concerning    the    health,    the    physical    and 
mental  condition  of  another.4     For  instance,  that  a 
person  was  sick;5  or  in  poor  health;6  or  was  formerly 
in  "good  health;7  or  grew  worse  in  health;8  or  was 
rational  or  irrational;9  sane  or  insane;10  or  whether 
a  person's  mind  was  clear;11  or  had  failed  mentally 
in  a  given  time;12  whether  a  person  appeared  to  be 
well  or  ill;13  or  "looked  bad."  " 

5.  Concerning  a  person's  habits.     For  instance, 
that  a  person  was  of  intemperate  habits.15 

6.  Concerning  his  actions.     For  example,  that  a 
person  acted  strangely  and  in  a  childish  manner, ie 
or  was  "short"  in  answering  questions.17 

7.  Concerning  his  character.     For  example,  that 
he  was  eccentric,18  or  of  fickle  mind.19 

1  State  v.  Houston,  78  Ala.  576. 

2  South,  etc.  R.  R.  Co.  v.  McLendon,  63  Ala.  266. 

3  Trelawney  v.  Colenian,  2  Starkie,  168;  McKee  v.  Nelson,  4  Cowen 
(N.  Y.),  355;  Pelamourges  v.  Clark,  9  Iowa,  1,  17.     And  see  Evans  v. 
The  People,  12  Mich.  27,  35;  Blake  v.  The  People,  73  N.  Y.  586. 

4  Tierney  v.  Minnesota,  etc.  R.  R.  Co.,  33  Minn.  311;  Albert  v.  The 
State,  66  Md.  325;  Bridge  v.  City  of  Oshkosh,  71  Wis.  363. 

8  Chicago,  etc.  R.  R.  Co.  v.  George,  19111.  510,  515. 

9  Carthage  Turnpike  Co.  v.  Andrews,  102  Ind.  138. 
7  Smalley  v.  Appleton,  70  Wis.  340. 

6  Louisville,  etc.  R.  R.  Co.  v.  Wood,  113  Ind.  544. 

9  People  v.  Lavelle,  71  Cal.  351. 

10  Haney  v.  Clark,  65  Texas,  93;  Upstone  v.  The  People,  109  HI.  169; 
Conn.  Mut.Life  Ins.  Co.  v.Lathrop,  111  U.  S.  612;  McRaev.  Malloy,  93 
N.  C.  154. 

11  People  v.  Sanford,  43  Cal.  32. 

12  Commonwealth  v.  Brayman,  136  Mass.  438. 

18  Canady  v.  Lynch,  27  Minn.  435;  Wilkenson  v.  Moseby,  30  Ala.  562. 

14  South,  etc.  R.  R.  Co.  v.  McLendon,  63  Ala.  275. 

15  Gallagher  v.  The  People,  120  111.  179,  182;  Smith  v.  State,  55  Ala.  1. 

16  Parsons  v.  Parsons,  66  Iowa,  754;  Irish  v.  Smith,  8  S.  &  R.  573. 

17  Carroll  v.  State,  23  Ala.  28. 

18  Fraser  v.  Jennison,  42  Mich.  206,  215. 

19  Mills  v.  Winter,  94  Ind.  329. 


12  KXI'ERT    TESTIMONY. 

8.     Concerning  his  reputation.     Whether  it  was 
good  or  bad.1 

So  the  opinions  of  ordinary  witnesses  are  received. 

1.  In  matters  of  size,  color,  weight  and  quantity." 

2.  In  estimations  of  time  and  distance.3 

3.  In  regard  to  the  character  of  sounds,  and  the 
direction  from  which  they  seem  to  come.4 

4.  Whether  a  thing  was  done  in  a  jocular  or  in 
an  insulting  manner.5 

5.  How  a  certain   thing  which   the  witness  ob- 
served appeared.6 

6.  On  questions  of  value.7 

7.  As  to  impressions  of  cold  or  heat,  light  and 
darkness.8 

8.  As  to  the  disposition  of  animals.9 

9.  And  in  some  cases  as  to  the  capacity  and  suffi- 
ciency of  an  object  for  the  purpose  intended.    Thus, 
ordinary  persons  having  sufficient  opportunity  for  per- 
sonal observation,  and  giving  in  their  testimony  the 
facts  of  their  observation,  have  been  allowed  to  ex- 
press their  opinions  as  to  the  capacity  and  sufficiency 

1  Childs  v.  State,  55  Ala.  28;  Snow  v.  Grace,  29  Ark.  138. 

2  Commonwealth  v.  Sturtivant,  117  Mass.  133 ;  Bass  Furnace  Co.  v. 
Glasscock,  82  Ala.  452. 

3  See  Commonwealth  v.  Sturtivant,  117  Mass.  133. 

4  State  v.  Shinborn,  46  N.   H.   501.    In  Atchison,  etc.  R.  R.  Co.  v. 
Miller,  39  Kan.  419,  a  person  was  permitted  to  testify  that  he  was  in  a 
position  to  have  heard  a  whistle,  if  it  had  been  sounded.    In  Dyer  v. 
Dyer,  87  Ind.  13,  it  was  held  a  witness  could  not  express  his  opinion  as 
to  whether  a  person  heard  certain  words. 

8  Powers  v.  The  State,  23  Texas  App.  42.    And  see  Ray  v.  State,  50 
Ala.  104;  Raisler  v.  Springer,  38  Ala.  703. 

6  The  State  v.  Parker,  96  Mo.  382,  393.    In  Commonwealth  v.  Sturti- 
vant, 117  Mass.  122,  where  a  witness  was  permitted  to  express  an  opin- 
ion that  certain  shoes  which  he  had  seen  appeared  as  if  they  had  re- 
cently been  washed. 

7  Spear  v.  Drainage  Commissioners,  113  111.  632, 635.    See  chapter  VIII. 

8  Kelley  v.  Richardson,  69  Mich.  430,  436. 

9  Matteson  v.  State,  55  Ala.  224;  Whittier  v.  Franklin,  46  X.  H.  23. 


WHEN    OPINIONS    ARE    INADMISSIBLE.  IS 

of  a  culvert  to  carry  away  accumulated  water  in  time 
of  freshets.1  And  where  the  question  was  as  to  the 
strength  and  sufficiency  of  a  dam  to  sustain  tha 
quantity  of  water  which  would  be  accumulated  by 
it,  the  opinions  of  practical  and  observing  men,  who 
possessed  no  peculiar  skill  on  the  subject,  but 
stated  the  facts  of  their  observation,  have  been  re- 
ceived in  evidence.2  (But  see  pages  14,  15.) 

§  5.  The  Iiiad in issi hi lit.v  of  Opinion  Evidence. — 
We  have  seen  that  opinions  may  be  received  when 
the  facts  cannot  be  made  palpable  to  the  jurors  so 
that  their  means  of  forming  opinions  are  practically 
equal  to  those  of  the  witnesses.  It  is  equally  true 
that  opinions  cannot  be  received  in  cases  where  the 
jury  are  equally  capable  with  the  witness  of  forming 
an  opinion  from  the  facts  stated.3 

1.  The  opinions  of  witnesses,  whether  experts  or 
not,  will  not,  according  to  some  of  the  authorities, 
be  received  on  the  question  whether  a  certain  place 
is  safe  or  dangerous.4 

For  instance,  it  has  been  held  that  the  opinions 
of  witnesses  could  not  be  received  as  to  whether  a 

1  McPherson  v.  St.  Louis,  etc.  R.  R.  Co.,  97  Mo.  253,  256. 

a  Porter  v.  The  Pequonnoc  Mnfg.  Co.,  17  Conu.  249.  In  this  case  it  is 
stated:  "They  (the  witnesses)  had  acquired,  by  their  personal  obser- 
vation, a  knowledge  of  the  character  of  the  stream,  and  also  of  the  dam, 
and  were  therefore  peculiarly  qualified  to  determine  whether  the  latter 
was  sufficiently  strong  to  withstand  the  former.  The  opinions  of  such 
persons,  on  a  question  of  this  description,  although  possessing  no  pecu- 
liar skill  on  the  subject,  would  ordinarily  be  more  satisfactory  to  the 
minds  of  the  triers  than  those  of  scientific  men  who  were  personally 
unacquainted  with  the  facts  in  the  case."  And  see  Harford  County  v. 
Wise  (Md.),  18  Atl.  Rep.  31. 

3  Railroad  Co.  v.  Schultz,  43  Ohio  St.  270;  Kent  v.  Miltenberger,  15 
Mo.  App.  480;  Parkhurst  v.  Masteller,  57  Iowa,  476. 

4  See  Couch  v.  Charlotte,  etc.  R.  R.  Co.,  22  S.  C.  557,  561 ;  Tolson  v. 
Inland  Coasting  Co.,  17  D.  C.  39;  Way  v.  Illinois  Central  R.  R.  Co.,  40 
Iowa,  341;   King  v.  Missouri,   etc.  R.  Co.  (Mo.),  11   S.  W.  Rep.  563; 
Topeka  v.  Sherwood,  39  Kan.  690. 


14  EXPERT   TESTIMONY. 

stock  car  was  a  dangerous  place  for  a  person  to  ride,1 
and  that  a  city  surveyor,  civil  engineer  and  super- 
intendent of  streets  could  not  express  an  opinion 
whether  a  street  gutter  was  in  a  safe  or  unsafe  con- 
dition;2 and  that  a  witness  could  not  state  whether 
in  his  opinion  a  bridge  "  was  reasonably  safe;"3  nor 
whether  a  highway  was  safe;4  and  yet  the  rule  is  not 
one  that  has  been  applied  in  all  cases.  The  elements 
entering  into  the  question  of  reasonable  safety  are 
sometimes  numerous  and  often  difficult  of  descrip- 
tion,5 and  there  are  cases  in  which  opinions  have 
been  received  on  the  subject.6 

2.  The  question  whether  a  certain  thing  is  nec- 
essary or  not,  is,  ordinarily,  a  question  for  the  jury 
to  determine.  It  has  therefore  been  held  incompe- 
tent to  introduce  expert  testimony  to  show  the  opin- 
ion of  the  witness  that  a  cattle-guard  or  barrier  was 
necessary  at  a  particular  point  on  defendant's  line 
of  railroad,7  and  it  has  been  held  that  opinions  will 
not  be  received  on  the  question  whether  a  certain 

1  Lawson  v.  Chicago,  etc.  R.  R.  Co.,  64  Wis.  447. 

2  Baker  v.  City  of  Madison,  62  Wis.  143. 

3  Weeks  v.  Town  of  Lyndon,  54  Vt.  638;  Bliss  v.  Wilbraham,  8  Allen 
(Mass.)  564;  Crane  v.  Northfield,  33  Vt.  126. 

4  Kelley  v.  Fon  Du  Lac,  31  Wis.  179;  Stillwater  Turnpike  Co.  v.  Coov- 
er,  26  Ohio  St.  520;  Brown  v.  Cape  Girardeau,  etc.  Plank  Road  Co., 
89  Mo.  152;  City  of  Topeka  v.  Sherwood,  39  Kan.  690. 

8  See  Schwander  v.  Birge,  46  Hun  (N.  Y.)  66,  69. 

6  Taylor  v.  Town  of  Monroe, 43  Conn.  36;  Albert  v.  The  State,  66  Md. 
325.    In  Laughlin  v.  Street  Railway  Co.,  62  Mich.  226,  the  court  say: 
44  It  is  always  competent  for  those  who  are  familliar  with  the  highways 
and  their  use  to  give  their  impressions  received  at  the  time  concerning 
safety  or  convenience  of  passage,  and  other  conditions  of  an  analogous 
nature.    They  are  not  strictly  scientific  questions,  and   come  within 
familiar  principles."   But  in  the  foregoing  case,  MORSE,  J.,  delivered  a 
strong  dissenting  opinion.     In  Cross  v.  Lake  Shore,  etc.  Railway  Co., 
69  Mich.  363,  a  civil  engineer  was  allowed  to  testify  that  a  hole  near  a 
traveled  way  '-  was  a  dangerous  place,  and   needed  protection."    And 
sew  Merkle  v.  Bennington,  68  Mich.  133,  143;  also  section  10. 

7  Amstein  v.  Gardner,  134  Mas->.  10. 


WHEN    OPINIONS    ARE    INADMISSIBLE.  15 

fence  was  sufficient  to  turn  stock,1  nor  whether  cer- 
tain cattle-guards  were  sufficient  and  proper.2 

3.  The  question  of  what  is  the  proximate  cause 
of  an  injury  is  ordinarily  not  one  of  science  or  of 
legal  knowledge,  but  of  fact  for  the  jury  to   deter- 
mine in  view  of  the  circumstances  of  fact  attending 
it.3     But  while  opinions  as  to  proximate  cause  are 
ordinarily  inadmissible,  experts  are  allowed  on  ques- 
tions of  science  to  testify  as  to  the  possible  causes 
of  a  given  effect,*  and  the  opinions  of  ordinary  wit- 
nesses are   sometimes  likewise  received  as  to  the 
cause  of  a  given  effect.     Thus,  where  the  question 
was  whether  a  dam  was  the  cause  of  an  overflow, 
and  it  was  claimed  that  the  question  should  be  set- 
tled by  actual  survey,  measurement  and  science,  the 
court  declared  that  the  opinions  and  observations  of 
the  witnesses  who  were  well  acquainted  with  the 
premises  were  as  certain  and  direct.5 

4.  Whether  this  or  that  act  amounts  to  negli- 
gence is  ordinarily  a  matter  of  judgment  and  com- 
mon experience  rather  than  of  science  or  skill,  and 
the  opinions  of  experts  are  inadmissible  in  evidence 
concerning  the  same.6     An  expert  may   be   asked 
whether  certain  things  were  properly  or  skillfully 
done,  but  not  whether  a  person  was  guilty  of  want 
of  ordinary   care  or  of  negligence  in  the  doing  oi 
such  things.7     The  witness  cannot  be  asked  whether 

1  Railroad  Co.  v.  Schultz,  43  Ohio  St.  270;  Sowers  v.  Dukes,  8  Minn. 
23;  Enright  v.  The  Railroad  Co.,  33  Cal.  230. 
8  St.  Louis,  etc.  R.  R.  Co.  v.  Ritz,  33  Kan.  404.    See  page  12. 

3  Milwakee,  etc.  R.  R.  Co.  v.  Kellogg,  94  U.  S.  469,  474. 

4  Moyer  v.  New  York  Central  R.  R.  Co.,  98  X.  Y.  646. 
6  McLeocl  v.  Lee,  17  Nevada,  103. 

«  Mantel  v.  Chicago,  etc.  R.  R.  Co.,  33  Minn.  62,  65;  The  East  Tennes- 
see, etc.  R.  R.  Co.  v.  Wright,  76  Ga.  532,  536;  Ballard  v.  New  York 
etc.  R.  R.  Co.,  126  Pa.  St.  141 ;  Bills  v.  Ottumwa,  35  Iowa  107. 

1  Seliger  v.  Bastian,  66  Wis.  521,  522. 


16  EXPERT    TESTIMONY. 

a  person  exercised  due  care;1  nor  whether  a  person 
was  a  careful  driver;2  nor  "is  that  the  ordinary, 
careful,  prudent,  and  safe  manner  (of  performing  the 
service);  '  3  nor  "what  would  be  the  chances  for  a 
stage  coach  to  tip  over,  being  driven  by  an  ordi- 
narily careful,  prudent  driver;"4  nor  whether  the 
practice  of  a  certain  railroad  in  blowing  its  whistle 
was  "reasonable  or  unreasonable,"  "prudent"  or 
"extraordinary,"  or  "an  unreasonable  manner  of 
proceeding  on  the  part  of  the  engineer;  '  nor 
whether  leaving  a  horse  unhitched  in  a  mill  yard 
"was  the  act  of  a  careful  and  prudent  man;  '  6  nor 
whether  placing  wet  staves  on  the  outside  of  an  arch 
with  fire  in  it  "was  a  safe  and  prudent  way  to  dry 
them;  "  7  nor  whether  the  plaintiff  could  have  been 
injured  in  oiling  a  certain  part  of  the  machinery  of 
a  steam  engine  if  he  had  not  been  careless;8  nor 
whether  the  means  of  egress  from  a  building  were 
all  that  due  care  required  the  defendant  to  provide;9 
_nor  whether  certain  goods  "were  as  well  handled 
and  cared  for  as  goods  usually  are  when  attached." 
And  so  it  has  been  held  that  while  a  physician 
might  state  what,  in  his  opinion,  was  the  cause  of  a 
certain  hemorrhage,  yet  it  was  not  competent  for 
him  to  say  whether  it  was  to  be  attributed  to  the 


1  Hopkins  v.  Indianapolis,  etc.  R.  R.  Co.,  78  111.  32. 

2  Morris  v.  East  Haven,  41  Conn.  252. 
8  Seliger  v.  Bastian,  66  Wis.  521. 

4  Oleson  v.  Tolford,  37  Wis.  327. 
6  Hill  v.  Portland,  etc.  R.  R.  Co.,  55  Me.  439. 

6  Stowe  v.  Bishop,  58  Vt.  498  (1886).    And  see  Monroe  v.  Lattin,  2fv 
Kan.  351. 
1  White  v.  Ballou,  8  Allen  (Mass.),  408. 

8  Buxton  v.  Somerset  Potters'  Works,  121  Mass.  446. 

9  Schwander  v.  Birge,  46  Hun  (N.  Y.),  66. 

10  Dow  v.  Julien,  32  Kan.  576. 


WHEN    OPINIONS    ARE    INADMISSIBLE.  17 

party's  negligence.1  It  has  been  held,  too,  that  the 
opinion  of  a  witness  was  inadmissible  that  it  was  not 
prudent  to  use  a  certain  hoisting  apparatus  with  less 
than  three  men,  on  a  stone  of  two  tons'  heft.2  In 
the  case  last  cited  the  court  says:  "When  this  ma- 
chine was  fully  described  as  to  its  structure,  strength, 
methods  of  use,  number  of  men  required,  danger  in 
its  use  by  less  number,  its  safety  and  adequacy 
when  properly  used,  the  inference  as  to  the  pru- 
dence of  undertaking  to  operate  it  on  a  stone  of  the 
size  in  question  with  only  two  men,  was  one  which 
required  no  particular  knowledge  and  skill,  but 
rested  in  the  sound  judgment  of  the  jurors,  and  one 
which  they  could  as  well  decide  for  themselves." 

In  a  case  where  it  was  claimed  that  a  railroad 
company  had  been  guilty  of  negligence  in  not  re- 
moving certain  brasses  from  the  boxes  of  car  wheels, 
it  was  held  improper  to  ask  an  expert  "when  ought 
they  to  be  removed?"  The  court  says:  "We  think, 
however,  that  the  proposed  fact  is  not  competent  to 
be  established  by  the  opinion  of  a  witness  offered  as 
an  expert.  The  effects  of  allowing  the  brasses  to 
become  worn  and  thin  and  broken  should  be  shown. 
Then  the  jury  would  be  competent  to  determine 
whether  it  was  negligence  to  fail  to  remove  them 
before  such  condition  existed.  To  allow  a  witness 
to  testify  as  an  expert  to  such  fact  would  be  to  sub- 
stitute the  witness  for  the  jury." 


1  Brant  v.  City  of  Lyons,  60  Iowa,  172, 174. 

2  Bemis  v.  Central  Vermont  R.  R.  Co.,  58  Vt.  636. 

3  Kitteringham  v.  The  Sioux  City,  etc.  R.  R.  Co.,  62  Iowa,  285.    The 
question  had  been  asked  in  order  to  show  that  the  brasses  should  be 
removed  before  they  are  worn  as  thin  as  a  knife,  before  they  become 
broken,  or  before  the  old  axle -grease  burns  into  the  broken  brass,  there- 

(2) 


18  EXPERT    TESTIMONY. 

5.  Intention  or  motive  is  an  inferential  fact  to 
which  a  witness  is  ordinarily  not  allowed  to  testify 
in  terms.1 

6.  A  witness  cannot  testify  whether,  in  his  opin- 
ion, a  certain  thing  is  fair  or  not;2  or  give  his  opin- 
ion on  matters  of  moral  obligation.3 

7.  The  opinion  of  a  witness  on  a  question  of  law 
or  legal  obligation  is  inadmissible,4  except  on  the 
subject  of  foreign  law  in  which  case  the  opinions  of 
persons  skilled  in  the  same  may  be  received.5 

8.  As  a  rule,  opinions  are  inadmissible  on  the 
measure  of  damages.6     But  this  subject  is  fully  con- 
sidered in  a  subsequent  chapter.7 

9.  Ordinarily  the  opinions  of  witnesses  are  inad- 
missible as  to  the  meaning  of  English  words,8  but  in 
action  for  slander  or  libel  the  principle  is  establised 
that  after  evidence  has  been  given  to  show  that  the 
words  used  may  have  conveyed  a  special  meaning 
on  the  particular  occasion  the  opinion  of  the  witness 


by  causing  a  poisonous  substance  to  accumulate  on  them — all  of  which 
counsel  claimed  constituted  the  elements  of  negligence. 

1  Sharp  v.  Hall,  86  Ala.  110;  Taylor  v.  Penquite,  35  Mo.  App.  389,  402. 

2  Reid  v. Ladue,  66  Mich.  22,  26.     And  see  section  11  of  this  chapter; 
Adams  v.  Thornton,  82  Ala.  260;  Manufacturers,  etc.  v.  Koch,  105  X.  Y. 
630;  Tait  v.  Hall,  71  Cal.  149. 

3  See  1  Greenl.  Evid.  §  441. 

4  Williams  v.  Souther,  7  Iowa,  435;  Jackson  v.  Benson,  54  Iowa,  G54; 
Short  Mountain  Coal  Co.  v.  Hardy,  114  Mass.  197;  Fairchild  v.Basrom, 
35  Vermont,  398;  Rodgers  v.  Kline,  56  Miss.  808;  Lindauer  v.  Delaware 
Mut.  Ins.  Co.,  13  Ark.  462;   Phelps  v.  Town,  14  Mich.  374;   White  v. 
Bailey,  10  Mich.  155;  Stiles  v.  Steele,  37  Kan.  552;  Shirflet  v.  Morolle, 
68  Texas,  382;  Moser  v.  Cochrane,  107  X.  Y.  35. 

6  See  Chapter  V. 

6  Central  R.  Co.  v.  Kelly,  58  Ga.  107;  Noiman  v.  Wells,  17  Wend.  136; 
Bain  v.  Cushman,  60  Vermont,  343. 

7  See  Chapter  VIH. 

8  Hill  v.  King  Mfg.  Co.,  79  Ga.  105;  Pennsylvania  Co.  v.  Connell,  127 
111.419;  Republican,  etc.  Co.  v.  Miner,  12  Col.  86;   Commonwealth  v. 
Marzynski.  149  Mass.  68,  72. 


ADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.  19 

as  to  their  intended  meaning  is  admissible.1  Thus, 
it  is  said:  " Something  may  have  previously  passed 
which  gives  a  peculiar  character  and  meaning  to 
some  expression ;  and  some  word  which  ordinarily 
or  popularly  is  used  in  one  sense,  may  from  some- 
thing which  has  gone  before  be  restricted  and  con- 
fined to  a  particular  sense  or  may  mean  something 
different  from  that  which  it  ordinarily  and  usually 
does  mean.  But  the  proper  course  of  a  counsel  who 
proposes  so  to  get  rid  of  the  plain  and  obvious  mean- 
ing of  words  imputed  to  a  defendant  as  spoken  of 
the  plaintiff,  is  to  ask  the  witness  not  'what  did  you 
understand  by  those  words?'  but  'was  there  any- 
thing to  prevent  those  words  from  conveying  the 
meaning  which  ordinarily  they  would  convey?'  be- 
cause if  there  was,  evidence  of  that  may  be  given, 
and  then  the  question  may  be  put.  When  you  have 
laid  the  foundation  for  it,  the  question  may  then  be 
put  'what  did  you  understand  by  them?'  when  it 
appears  that  something  occurred  by  which  the  wit- 
ness understood  the  words  in  a  sense  different  from 
their  ordinary  meaning." 

The  right  to  introduce  opinion  evidence  to  explain 
the  meaning  of  technical  terms  and  unusual  words  is 
elsewhere  considered.3 

§  6.  When  Expert  Testimony  is  Admissible. — The 
rule  is,  that  the  opinions  of  experts  or  skilled  wit- 
nesses are  admissible  in  evidence  in  those  cases  in 
which  the  matter  of  inquiry  is  such,  that  inexperi- 
enced persons  are  unlikely  to  prove  capable  of 
forming  a  correct  judgment  upon  it,  for  the  reason 

1  See  Odger  on  Libel  and  Slander,  566.    See  Gribble  v.  Pioneer  Press 
Co.,  37  Minn.  277. 

2  Daines  v.  Hartley,  3  Exch.  200. 

3  See  the  section  on  technical  terms  and  unsual  words  in  Chapter  VI. 


20  EXPERT    TESTIMONY. 

that  the  subject-matter  so  far  partakes  of  the  nature 
of  a  science,  art  or  trade,  as  to  require  a  previous 
habit,  or  experience,  or  study  in  it,  in  order  to  ac- 
quire a  knowledge  of  it.  When  the  question  in- 
volved does  not  lie  within  the  range  of  common 
experience,  or  common  knowledge,  but  requires 
special  experience,  or  special  knowledge,  then  the 
opinions  of  witnesses  skilled  in  the  particular  science, 
art  or  trade  to  which  the  question  relates,  are  ad- 
misssible  in  evidence.1  "It  is  not  because  a  man 
has  a  reputation  for  sagacity,  and  judgment,  and 

1  Folkes  v.  Chadd,  3  Douglas  (26  Eng.  C.  L.  63),  175;  Chauraud  v. 
Angerstein,  Peake  N.  P.  C.  61;  Campbell  v.  Ricards,  5  Barn.  &  Ad.  840; 
Davis  v.  State,  38  Md.  15,  38;  City  of  Chicago  v.  McGiven,  78  111.  347; 
City  of  Parsons  v.  Lindsay,  26  Kan.  426,  432;  Monroe  v.  Lattin,  25  Kan. 
351;  Roberts  v.  Commissioners  of  Brown  County,  21  Kan.  248;  Crom- 
well v.  Western  Reserve  Bank,  3  Ohio  St.  406;  Cleveland,  etc.  R.  R.  Co. 
v.  Ball,  5  Ohio  St.  568,573;  Page  v.  Parker,  40  N.  H.  59;  Jones  v. 
Tucker,  41  N.  H.  546;  Sowers  v.  Dukes,  8  Minn.  23;  Cole  v.  Chvk,  3 
Wis.  323;  Cottrill  v.  Myrick,  12  Me.  222,  231;  Humphries  v.  Johnson,  20 
Ind.  190;  Dillard  v.  State,  58  Miss.  368;  Wagner  v.  Jacob,  26  Mo.  530; 
Newmark  v.  Liverpool,  etc.  Ins.  Co.,  30 Mo.  165;  Whitmore  v. Bowman, 
4  G.Greene  (Iowa),  148;  Pelamourges  v.  Clark,  9  Iowa,  1,  13;  Bearss 
v.  Copley,  10  1ST.  Y.  95;  Robertson  v.  Stark,  15  N.  H.  109,  113;  Norman 
v.  Wells,  17  Wend.  136, 162;  Lincoln  v.  Saratoga,  etc.  R.  R.  Co.,  23 
Wend.  425,  432 ;  Terpenning  v.  The  Corn  Exchange  Ins.  Co.,  43  N.  Y. 
279,  282;  Evansville  R.  R.  Co.  v.  Fitzpatrick,  10  Ind.  120;  Mish  v.  Wood, 
34  Pa.  St.  451,  453;  Snow  v.  Boston,  etc.  R.  R.  Co.,  65  Me.  230;  Teb- 
betts  v.  Haskins,  16  Me.  283,  287;  Forbes  v.  Caruthers,  3  Yeates  (Penn.), 
527 ;  Hastings  v.  Steamer  Uncle  Sam,  10  Cal.  341 ;  Kline  v.  K.  C.,  St.  J., 
etc.  R.  R.  Co.,  50  Iowa,  656;  Hamilton  v.  Des  Moines  Valley  R.  R.  Co., 
36  Iowa,  31;  Bills  v.  Ottuinwa,  35  Iowa,  107;  Higgins  v.  Carlton,  28 
Md.  115;  Marshall  v.  Columbian,  etc.  Ins.  Co.,  7  Foster  (X.  H.),157; 
Hill  v.  Lafayette  Ins.  Co.,  2  Mich.  476,  481;  Milwaukee,  etc.  R.  R.  Co. 
v.  Kellog,  94  U.  S.  469,  473;  Lester  v.  Pitsford.  7  Vt.  158;  Cavendish  v. 
Troy,  41  Vt.  99, 108;  Rochester,  etc.  R.  R.  Co.  v.  Budlong,  10  How.  Pr. 
289,  291;  Slater  v.  Wilcox,  57  Barb.  604,  608;  Taylor  v.  Town  of  Mon- 
roe, 43  Conn.  36,  43;  State  v.  Clark,  15  S.  C.  (N.  s.)  403,  408;  Dowd  v. 
Guthrie,  13  111.  App.  653;  Sallwasser  v.  Hazlit,  18  111.  App.  243;  Hilton 
v.  Mason,  92  Ind.  157;  Coyle  v.  Commonwealth,  104  Pa.  St.  117;  Clark 
v.Bruce,  19  Hun  (N.  Y.),  274,  276;  Krippner  v.  Biebe,  28  Minn.  140; 
Stowe  v.  Bishop,  58  Vt.  498,  501;  Milwaukee,  etc.  R.  R.  Co.  v.  Kellog. 
94  U.  S.  469;  Donnelly  v.  Fitch,  136  Mass.  558. 


ADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.  21 

power  of  reasoning, ' '  as  Mr.  Chief  Justice  SHAW  has 
said,  "that  his  opinion  is  admissible;  if  so,  such 
men  might  be  called  in  all  cases,  to  advise  thejury, 
and  it  would  change  the  mode  of  trial.  But  it  is 
because  a  man's  professional  pursuits,  his  peculiar 
skill  and  knowledge  in  some  department  of  science, 
not  common  to  men  in  general,  enable  him  to  draw 
an  inference,  where  men  of  common  experience, 
after  all  the  facts  proved,  would  be  left  in  doubt." 
And  the  rule  admitting  the  opinions  of  experts  in 
such  cases,  is  founded  on  necessity,2  for  juries  are 
not  selected  with  any  view  to  their  knowledge  of  a 
particular  science,  art  or  trade,  requiring  a  course 
of  previous  study,  experience  and  preparation.3  It, 
therefore,  becomes  matter  of  necessity,  when  ques- 
tions arise  which  do  not  lie  within  the  ordinary 
information  of  men  in  general,  but  fall  rather  within 
the  limits  of  some  art  or  science,  that  juries  should 
have  the  benefit  to  be  derived  from  the  opinions  of 
witnesses  possessing  peculiar  skill  in  the  particular 
departments  of  knowledge  to  which  such  questions 
relate.  So  that  it  may  be  said  that  the  foundation 
on  which  expert  testimony  rests,  is  the  supposed 
superior  knowledge  or  experience  of  the  expert  in 
relation  to  the  subject-matter  upon  which  he  is 
permitted  to  give  an  opinion  as  evidence/  And  it 
has  been  said  that  it  is  because  all  persons  have  not 
the  leisure  or  capacity  to  master  the  principles  of 
art  or  science,  that  those  who  are  specially  skilled 


1  New  England  Glass  Co.  v.  Lovell,  7  Cush.  319. 

2  State  v.  Clark,  12  Ired.  (N.  C.)   Law,  152, 153;  City  of  Chicago  v. 
McGiven,  78  111.  347. 

3  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452,  457. 

4  Clark  v.  Rockland  Water  Power  Co.,  52  Me.  68,  77. 


22  EXPERT    TESTIMONY. 

in  either,  are  allowed  to  give  their  opinions  in  evi- 
dence.1 

The  Supreme  Court  of  New  Hampshire,  in  de- 
claring under  what  circumstances  the  testimony  of 
experts  may  be  properly  received  in  evidence,  has 
classified  the  cases  under  three  heads,  and  declares 
that  experts  may  give  their  opinions: 

1.  Upon   questions  of  science,  skill  or  trade,  or 
others  of  like  kind. 

2.  When  the   subject-matter  of  inquiry  is  such, 
that  inexperienced  persons  are  unlikely   to   prove 
capable   of  forming  a   correct  judgment   upon   it, 
without  such  assistance. 

3.  When  the  subject-matter  of  investigation  so  far 
partakes  of  the  nature  of  a  science   as  to  require  a 
course  of  previous  habit  or  study,  in  order  to  the 
attainment  of  a  knowledge  of  it.2 

The  following  statement  of  the  law  upon  this 
point  is  to  be  found  in  a  decision  of  the  Supreme 
Court  of  Iowa:  "It  is  often  very  difficult  to  deter- 
mine in  regard  to  what  particular  matters  and  points 
witnesses  may  give  testimony  by  way  of  opinion. 
It  is  doubtful  whether  all  the  cases  can  be  harmo- 
nized, or  brought  within  any  general  rule  or  princi- 
ple. The  most  comprehensive  and  accurate  rule 
upon  the  subject,  we  believe  to  be  as  follows:  That 
the  opinion  of  witnesses  possessing  peculiar  skill  is 
admissible  whenever  the  subject-matter  of  inquiry 
is  such,  that  inexperienced  persons  are  not  likely  to 
prove  capable  of  forming  a  correct  judgment  upon 
it,  without  such  assistance;  in  other  words,  when  it 
so  far  partakes  of  the  nature  of  a  science,  as  to  re- 

1  Atchison,  etc.  R.  R.  Co.  v.  United  States,  15  Ct.  of  Claims,  140. 
*  Jones  v.  Tucker,  41  N.  H,  546. 


ADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.  23 

quire  a  course  of  previous  habit  or  study  in  order 
to  the  attainment  of  a  knowledge  of  it,  and  that  the 
opinions  of  witnesses  cannot  be  received  when  the 
inquiry  is  into  a  subject-matter,  the  nature  of  which 
is  not  such  as  to  require  any  particular  habits  of 
study  in  order  to  qualify  a  man  to  understand  it. 
If  the  relations  of  facts  and  their  probable  results 
can  be  determined  without  especial  skill  or  study, 
the  facts  themselves  must  be  given  in  evidence,  and 
the  conclusions  or  inferences  must  be  drawn  by  the 
jury."1  ''The  true  test,"  says  the  Supreme  Court 
of  Connecticut,  "of  the  admissibility  of  such  testi- 
mony, is  not  whether  the  subject-matter  is  common 
or  uncommon,  or  whether  many  persons  or  few 
have  some  knowledge  of  the  matter;  but  it  is  whether 
the  witnesses  offered  as  experts  have  any  peculiar 
knowledge  or  experience,  not  common  to  the  world, 
which  renders  their  opinions,  founded  on  such 
knowledge  or  experience,  any  aid  to  the  court  or  to 
the  jury  in  determining  the  questions  at  issue." 

The  New  York  Court  of  Appeals  has  laid  down  the 
following  rule  :  ' '  It  is  not  sufficient  to  warrant  the 
introduction  of  expert  evidence  that  the  witness 
may  know  more  of  the  subject  of  inquiry,  and  may 
better  comprehend  and  appreciate  it  than  the  jury ; 
but  to  warrant  its  introduction  the  subject  of  the 
inquiry  must  be  one  relating  to  some  trade,  profes- 
sion, science  or  art  in  which  persons  instructed 
therein,  by  study  or  experience,  may  be  supposed 
to  have  more  skill  and  knowledge  than  jurors  of 
average  intelligence  may  be  presumed  generally  to 
have."3 

1  Muldowney  v.  Illinois  Central  R.  R.  Co.,  36  Iowa,  472. 

2  Taylor  v.  Town  of  Monroe,  43  Conn.  36,  44. 

3  Ferguson  v.  Hubbell,  97  X.  Y.  507,  513. 


24  EXPERT   TESTIMONY. 

And  in  a  well  considered  case  in  the  Supreme 
Court  of  New  York  the  rule  was  stated  as  follows  : 
"  The  governing  rule  deduced  from  the  cases  per- 
mitting the  opinions  of  witnesses  is  that  the  subject 
must  be  one  of  science  or  skill,  or  one  of  which  ob- 
servation and  experience  have  given  the  opportunity 
and  means  of  knowledge,  which  exists  in  reasons 
rather  than  descriptive  facts,  and  therefore  cannot 
be  intelligently  communicated  to  others  not  familiar 
with  the  subject  so  as  to  possess  them  with  a  full 
understanding  of  it."1  Expert  testimony  is  admissi- 
ble when  the  question  involved  is  one  of  professional 
or  scientific  knowledge.2 

§  7.  Meaning  of  the  Terms  "Science"  and  "Art." 
— It  is  sometimes  laid  down  in  a  general  way,  that 
the  opinions  of  experts  are  admissible  only  when  the 
subject-matter  of  inquiry  relates  to  some  "  science  " 
or  "  art."  It  is  to  be  observed,  however,  that  these 
words  include  all  subjects  on  which  a  course  of  spe- 
cial study  or  experience  is  necessary  to  the  forma- 
tion of  an  opinion,3  and  that  it  is  not  necessary  '  'that 
a  specialty  to  enable  one  of  its  practitioners  to  be 
examined  as  an  expert,  should  involve  abstruse 
scientific  conditions."*  "Art,  in  its  legal  signifi- 
cance, embraces  every  operation  of  human  intelli- 
gence, whereby  something  is  produced  outside  of 
nature ;  and  the  term  'science'  includes  all  human 
knowledge  which  has  been  generalized,  and  sys- 
tematized, and  has  obtained  method,  relations  and 
the  forms  of  law."5  So  that  while  it  may  be  laid 

1  Schwander  v.  Birge,  46  Hun  (N.  Y.),  66,  70. 

2  Van  Wycklen  v.  City  of  Brooklyn,  41  Hun  (N.  Y.),  418. 

3  Stephen's  Dig.  of  Law  of  Evid.  Art.  49,  p.  104. 
*  Story  v.  Maclay,  3  Mon.  (Ky.)  480,  483. 

5  Atchison,  etc.  R.  R.  Co.  v.  United  States,  15  Ct.  of  Claims,  140,  per 
Davis,  J. 


INADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.         25 

down  that  the  opinions  of  experts  are  limited  to 
matters  of  science,  art  or  skill,  yet  this  limitation  is 
not  applied  in  any  rigid  or  narrow  sense.1  And 
every  business  or  employment,  which  has  a  partic- 
ular class  devoted  to  its  pursuit,  is  said  to  be  an  art 
or  trade,  within  the  meaning  of  the  rule.2  As  has 
been  said  in  the  Irish  Exchequer  Chamber  by  Pigot, 
C.  B.,  "the  subjects  to  which  this  kind  of  evidence 
is  applicable,  are  not  confined  to  classed  and  spec- 
ified professions.  It  is  applicable  wherever  peculiar 
skill  and  judgment,  applied  to  a  particular  subject, 
are  required  to  explain  results,  or  trace  them  to  their 
causes." 

§  8.  When  the  Opinions  of  Experts  are  Inadmis- 
sible.— The  rule  is  well  established  that  the  opinions 
of  experts  cannot  be  received  in  evidence  in  cases 
where  the  subject-matter  of  inquiry  is  such  that  it 
may  be  presumed  to  lie  within  the  common  expe- 
rience of  all  men  of  common  education,  moving  in 
the  ordinary  walks  of  life.4  The  opinions  of  such 
witnesses  are  inadmissible  where  the  inquiry  is  into 


1  Clifford  v.  Richardson,  18  Vt.  620, 627;  Sturgis  v.  Knapp,  33  Vt.  486, 
531. 

2  Rochester,  etc.  R.  R.  Co  v.  Budlong,  10  How.  Pr.  289, 291 ;  and  Tay- 
lor v.  Town  of  Monroe,  43  Conn.  36,  43. 

3  1  Irish  R.  (Com.  L.)  211,  218. 

4  Xew  England  Glass  Co.  v.  Lovell,  7  Cush.  (Mass.)  319;  Shatter  v. 
Evans,  53  Cal.  32;  City  of  Chicago  v.  McGiven,  78  111.  347;   Xaughton 
v.  Stagg,  4  Mo.  App.  271;  Cook  v.  State,  24  ST.  J.  Law,  843, 852;  Dillard 
v.  State,  58  Miss.  368;  Gavick  v.  Pacific  R.  R.  Co.,  49  Mo.  274;  Concord 
Railroad  Co.  v.  Greely,  3  Foster  (X.  H.),  237,  243;  Nashville,  etc.  R.  R. 
Co.  v.  Carroll,  53  Tenn.  347;  Linn  v.  Sigsbee,  67  El.  75;   Veerhusen  v. 
Chicago,  etc.  R.  R.  Co.,  53  Wis.  689,  694;  White  v.  Ballou,8  Allen,  408; 
Hovey  v.  Sawyer,  5  Allen,  554;   Perkins  v.  Augusta,  etc.  Banking  Co., 
10  Gray,  312;  Clark  v.  Fisher,  1  Paige  Cb.  171;   s.  c.,  19  Am.  Decis.402; 
Monroe  v.  Lattin,  25  Kan.  351,354;  People  v.  Mullen,  96  X.  Y.408;  Bal- 
timore, etc.  R.  R.  Co.  v.Leonhardt,  66  Md.  77,  78;  State  v.  Anderson,  10 
Oregon,  448. 


26  EXPERT   TESTIMONY. 

a  subject,  the  nature  of  which  is  not  such  as  to  re- 
quire any  peculiar  habits  or  study  in  order  to  qual- 
ify a  man  to  understand  it,  men  of  common  informa- 
tion being  capable  of  forming  a  judgment  thereon.1 
If  the  facts  can  be  placed  before  a  jury,  and  they 
are  of  such  a  nature  that  jurors  generally  are  just 
as  competent  to  form  opinions  in  reference  to  them 
and  draw  inferences  from  them  as  witnesses,  then  the 
opinions  of  experts  cannot  be  received  in  evidence.2 
'  'To  require  the  exclusion  of  such  evidence, ' '  says  the 
New  York  Court  of  Appeals,  "it  is  not  needed  that 
the  jurors  should  be  able  to  see  the  facts  as  they 
appear  to  eye-witnesses,  or  to  be  as  capable  to  draw 
conclusions  from  them  as  some  witnesses  might  be, 
but  it  is  sufficient  that  the  facts  can  be  presented  in 
such  a  manner  that  jurors  of  ordinary  intelligence 
and  experience  in  the  affairs  of  life  can  appreciate 
them,  can  base  intelligent  judgments  upon  them 
and  comprehend  them  sufficiently  for  the  ordinary 
administration  of  justice."  The  Supreme  Court  of 
Pennsylvania,  speaking  of  the  same  matter,  says  : 
"How  any  person  can  be  said  to  be  an  expert  in 
that  Avhich  is  not  and  cannot  be  followed  as  a  busi- 
ness, or  in  that  which  must  necessarily  result  from 
observation  of  a  character  so  general  that  it  must 
be  common  to  every  person,  we  cannot  understand. 


1  Ferguson  v.  Hubbell,  97  N.  Y.  507,  513;    Pennsylvania  Coal   Co.  v. 
Conlan,  101  HI.  93;   De  Berry  v.  C.  C.  R.  R.  Co.,  100  N.  C.  310,  315, 
(1888)  ;  Welch  v.  Ins.  Co.  23  W.  Va.  288,  306;  Gutridge  v.  Missouri,  etc. 
R.  R.  Co.,  94  Mo.  468,  473;  State  v.  Sorenson,  32  Minn.  120. 

2  Stafford  v.  City  of  Oskaloosa,  64  Iowa,  251 ;  Neilson  v.  Chicago,  etc. 
R.  R.  Co.,  58   Wis.  576;  Stumore  v.  Shaw,  68  Md.  11,  19,  (1887)  ;   May- 
hew  v.Sullivan  Mining  Co.,  76  Me.  100;   St.  Louis,  etc.  R.  R.  Co.  v. 
Ritz,  33  Kan.  404;  Kansas,  etc.  R.  R.  Co.  v.  Peavey,  29  Kan.  170;  Ama- 
don  v.  Ingersoll,  34  Hun  (N.  Y.),  132,  134. 

s  Ferguson  v.  Hubbell,  97  N.  Y.  507,  513. 


INADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.         27 

The  opinion  of  a  witness  who  neither  knows,  nor 
can  know,  more  about  the  subject-matter  than  the 
jury,  and  who  must  draw  his  deductions  from  facts 
already  in  the  possession  of  the  jury,  is  not  admissi- 
ble."1 

§  9.  The  Question  of  Admissibility  of  Expert  Tes- 
timony is  for  the  Court. — The  question  whether  the 
subject-matter  of  inquiry  in  a  particular  case  is  of 
such  a  nature  that  it  does  not  lie  within  the  com- 
mon experience  of  all  men  of  common  education  so 
that  the  testimony  of  experts  is  admissible  in  evi- 
dence, is  a  question  which  must  be  determined  'by 
the  court.  All  the  cases  recognize  the  rule  that  it  is 
for  the  court  to  determine  whether  the  subject-mat- 
ter is  one  of  science,  art  or  trade,  or  whether  it  is 
a  matter  of  common  experience.2 

§  10.  Cases  Illustrative  of  the  Inadmissibility  of 
the  Opinions  of  Experts. — While  there  is  no  doubt 
as  to  the  general  rule  stated  in  the  preceding  sec- 
tion, it  is  often  found  exceedingly  difficult  to  deter- 
mine whether  the  facts  to  be  examined  are  such  as 
lie  within  the  common  experience  of  all  men  of  com- 
mon education,  or  whether  they  lie  outside  the  range 
of  ordinary  intelligence.  And  the  decisions  are 
found  to  be  by  no  means  clear  or  satisfactory  upon 
the  distinctions  between  facts  that  lie  within  com- 
mon experience  and  ordinary  intelligence,  and  those 
that  lie  beyond  them.  The  principles  on  which  the 
authorities  rest  have  been  very  truly  pronounced 
more  consistent  than  the  attempts  which  have  been 
made  to  apply  them  in  actual  practice.3 

1  Franklin  Ins.  Co.  v.  Gruver,  100  Pa.  St.  266,  273. 

2  See  Dillard  v.  The  State,  58  Miss.  368,388;  Campbell  v.  Russell, 
139  Mass.  278. 

3  Evans  v.  The  People,  12  Mich.  27. 


28  EXPERT   TESTIMONY. 

In  illustration  of  the  general  principle  that  the 
opinions  of  experts  will  not  be  received  as  to  facts 
within  the  common  experience  of  men,  we  shall 
notice  the  following  cases:  Where  one  was  indicted 
under  a  statute  making  it  an  offense  to  sell  an  ob- 
scene or  indecent  book,  writing,  picture  or  photo- 
graph, the  question  of  obscenity  or  indeceny  was 
considered  as  falling  within  the  range  of  ordinary 
intelligence,  so  that  it  was  not  necessary  to  have  an 
expert  in  literature  or  art  to  determine  it.1 

That  expert  evidence  was  not  admissible  to  show 
that  actual  danger  from  fire  to  certain  premises  had 
been  increased  by  the  erection  of  adjacent  build- 
ings.2 That  it  could  not  be  received  on  the  question 
whether  the  position  of  certain  canal  boats  was  a 
proper  or  improper  position  in  which  to  lie  at  night.3 

It  has  been  held  that  the  opinion  of  one  whose 
occupation  was  the  braking  and  switching  of  cars, 
was  inadmissible  on  the  question  of  whether  it 
would  be  prudent  for  a  man  to  stand  any  other  way 
than  flatwise  in  making  a  coupling  of  cars,  and 
whether  it  was  considered  safe  or  unsafe  among 
brakemen  to  stand  facing  the  draft  iron  while  mak- 
ing the  coupling.4  That  a  railroad  expert  could  not 
be  asked  whether  the  time  which  a  railroad  train 
stopped  at  a  station  was  sufficient  to  enable  passen- 
gers to  get  off.5  That  a  railroad  conductor  could 
not  be  asked  whether  a  person  would  have  been 
thrown  from  the  cars,  if,  at  the  time  of  the  cars 


People  v.  Muller,  96  N.  Y.  408. 

2  Franklin  Fire  Ins.  Co .  v.  Gruver,  100  Pa.  St.  266.      See  chapter  VI. 

3  Case  v.  Perew,  46  Hun  (N.  Y.),  57. 

4  Belair  v.  The  C.  &  X.  W.  R.  Co.,  43  Iowa,  667;  Muldowney  v.  Illi- 
nois Cenl.  R.  R.  Co.,  36  Iowa,  472. 

5  Keller  v.  N.  Y.  Central  R.  R.  Co.,  2  Abbott  (Ct.  of  App.),  480. 


INADMISSIBILLITY    OF    OPINIONS    OF    EXPERTS.        29 

striking,  he  had  been  holding  on  to  the  brakes,  and 
exercising  ordinary  care  and  prudence  in  his  own 
protection  and  preservation.1  That  an  experienced 
railroad  man  could  not  be  asked  the  following  ques- 
tion: "Suppose  there  was  a  man  standing  by  the 
side  of  a  switch  that  night,  and  holding  a  lantern, 
such  as  you  have  described,  a  foot  or  two  from  the 
ground,  how  far  away  from  the  target  could  the  man 
see  the  top  of  the  target,  or  any  part  of  the  target 
above  the  lantern?  " 

So  it  has  been  held  that  a  medical  expert  who  had 
testified  as  to  the  injury  of  the  plaintiffs  fingers  be- 
ing very  severe — that  the  fingers  were  badly  mashed 
— that  the  middle  finger  was  quite  stiff,  and  fore- 
finger permanently  stiff — could  not  answer  the  fol- 
lowing questions: 

"I  will  ask  you  to  state  to  what  extent  the  injury 
impairs  the  usefulness  of  that  hand  for  any  skilled 
occupation,  or  any  occupation  requiring  a  quick  and 
ready  use  of  the  hand?  ' ' 

"State  the  degree  to  which  the  usefulness  of  that 
hand  would  be  impaired  for  skilled  labor,  requiring 
a  quick  and  ready  use  of  the  fingers,  such  as  coup- 
ling and  braking  cars  on  the  railroad? ' ' 

That  a  physician  could  not  testify  as  to  the  possi- 
bility of  a  rape  having  been  committed  in  a  partic- 
ular manner,  described  by  the  prosecutrix.  "No 
peculiar  knowledge  of  the  human  system  was  neces- 
sary to  answer  it.  It  was  a  mere  question  of  relative 
strength  or  mechanical  possibility,  which  an  athlete 
or  a  mechanic  could  have  answered  as  well  as  a 


1  Gavisk  v.  Pacific  R.  R.,  49  Mo.  274. 

2  Weane  v.  K.  &  D.  M.  R.  Co.,  45  Iowa,  246. 

3  Kline  v.  The  K.  C.,  St.  J.  &  C.  B.  R.  Co.,  50  Iowa,  656. 


30  EXPERT    TESTIMONY. 

physician,  and  every  man  upon  the  jury  as  well  as 
either."1 

That  brokers  and  bankers  could  not  be  asked 
whether  brokers  and  bankers  would  discount  a  note 
of  the  appearance  of  the  one  in  question,  without  a 
wilful  failure  to  inquire  into  the  circumstances  un- 
der which  it  was  obtained — the  note  was  written  on 
tracing  paper.2 

That  detectives  could  not  express  an  opinion  as 
to  whether  it  was  possible  to  commit  a  robbery  in 
the  manner  charged.3  That  a  surveyor  could  not 
express  an  opinion  as  an  expert  as  to  where  the 
highest  part  of  a  hill  was.4  That  an  innkeeper  could 
not  express  an  opinion  as  to  whether  it  was  safe  for 
a  guest  to  keep  his  money  in  a  locked  trunk.5 

That  firemen,  long  connected  with  a  city  fire  de- 
partment— to  whom  had  been  presented  a  plan  of 
the  buildings,  with  a  statement  of  the  distances 
between  them,  the  materials  of  which  they  were 
constructed,  the  direction  of  the  wind,  the  state  of 
the  weather,  and  the  fact  that  no  water  was  used 
on  the  fire — could  not  be  asked  whether  or  not,  in 
their  opinion,  the  dwelling  house  and  connected 
buildings  would  take  fire  from  the  barn;  whether  or 
not  it  was  a  common  occurrence  for  fire  to  be  com- 
municated from  leeward  to  windward  across  a  space 
greater  than  twenty-six  feet;  wh ether  or  not,  in 
their  experience,  large  wooden  buildings  or  large 


1  Cook  v.  State,  24  N.  J.  Law,  843. 

2  Rowland  v.  Fowler,  37  Conn.  348. 

3  People  v.   Morrigan,  29  Mich.  1.     "If  experts  were  allowable  on 
questions  of  criminal  science,  the  professors  and  practitioners  of  that 
science  would  naturally  be  the  experts  needed." 

4  Hovey  v.  Sawyer,  5  Allen  (Mass.),  554. 

5  Taylor  v.  Monnot,  4  Duer  (N.  Y.),  116. 


INADMISSIBILITY    OF    OPINIONS    OF    EXPERTS.         31 

fires  made  their  own  currents,  frequently  eddying 
against  the  prevailing  wind.1 

That  an  expert  accustomed  to  the  use  of  fire-arms 
could  not  be  asked  whether  a  certain  piece  of  paper 
had  been  used  as  wadding,  and  as  such  shot  from  a 
loaded  gun.'  That  the  question  whether  the  de- 
ceased, seated  at  or  near  a  window,  through  which 
he  was  shot,  could  have  seen  and  recognized  the 
person  on  the  outside  who  inflicted  the  wound,  was 
not  one  of  skill  or  science,  and  that,  therefore,  ex- 
periments made  by  others,  and  the  results  thereof, 
and  opinions  founded  thereon,  were  inadmissible.3 

That  the  opinion  of  a  person  experienced  in  clear- 
ing land  by  fire  was  inadmissible,  as  to  the  proba- 
bility that  a  fire  set  under  the  circumstances  de- 
scribed by  the  witnesses,  would  have  spread  to  the 
adjoining  land.4 

Whether  glass  placed  in  a  sidewalk  to  afford 
light  to  the  area  below  is  unsafe,  by  reason  of 
the  too  great  smoothness  or  slipperiness  of  its  sur- 
face, is  not  a  question  of  science  or  skill  such  as  to 
render  the  opinions  of  Avitnesses  admissible.5  So  it 
has  been  said  that  whether  a  street  crossing  is  un- 
safe and  dangerous  is  not  a  question  of  science  or 
skill,  upon  which  it  is  proper  to  receive  the  opin- 


1  State  v.  Watson,  65  Me.  74. 

2Manke  v.  People,  24  Hun  (1ST.  Y.),  316;  s.  c.,  78  X.  Y.  611.  The 
court  said  it  could  have  been  determined  by  a  jury  from  a  description 
of  the  facts  touching  the  appearance  of  the  paper  when  found,  such  as 
the  manner  in  which  it  was  folded,  whether  it  appeared  to  have  been 
partially  burned,  whether  it  bore  upon  its  creases  traces  of  powder 
stains,  etc. 

3  Jones  v.  State,  71  Ind.  66. 

4  Higgins  v.  Dewey,  107  Mass.  494.    And  see  Fraser  v.  Tupper,  29  Vt. 
409. 

5  City  of  Chicago  v.  McGiven,  78  111.  347. 


32  EXPERT   TESTIMONY. 

ions  of  witnesses.1  In  Wisconsin  it  is  said  that 
'  'possibly  there  might  be  cases  in  which  the  opinions 
of  experts  might  be  admissible  upon  matters  going 
to  the  sufficiency  of  a  highway.  Generally,  how- 
ever, it  is  a  pure  question  of  fact,  not  of  science  or 
skill."2 

§  11.  Inadmissibility  of  Opinions  Founded  on  a 
Theory  of  Morals  or  Duty. — The  opinion  of  a  witness, 
not  founded  on  science,  but  as  a  theory  of  morals  or 
duty,  is  inadmissible  in  evidence,  whether  given  by 
professional  or  unprofessional  witnesses.  Hence, 
where  the  question  was  whether  a  man  who  had 
committed  suicide  was  sane  or  insane,  the  opinion 
of  a  physician  that  no  sane  man  would  commit  sui- 
cide in  a  Christian  country,  was  held  inadmissible, 
as  being  founded,  not  on  the  phenomena  of  mind, 
but  rather  on  a  theory  of  morals,  religion  and  a 
future  state.3  And  the  opinions  of  medical  practi- 
tioners are  inadmissible  on  the  question  whether  a 
physician  has  honorably  and  faithfully  discharged 
his  duty  to  his  medical  brethren.4  So  it  has  been 
held  that  the  opinion  of  an  attorney,  that  a  certain 
transaction  was  an  honest  one,  was  inadmissible.5 

The  opinions  of  experts  are  ordinarily  inadmissi- 
ble on  questions  of  duty.  Thus,  it  has  been  held 
that  the  opinions  of  tenders  of  draw-bridges  were 
inadmissible  as  to  the  necessity  of  keeping  gates 
shut,  and  hanging  out  lanterns  for  the  proper  pro- 


1  City  of  Parsons  v.  Lindsay,  26  Kan.  426,  432. 

2  Benedict  v.  City  of  Fond  du  Lac.  44  Wis.  496.    And  see  Oleson  v. 
Tolford,  37  Wis.  327 ;  Montgomery  v.  Scott,  34  Wis.  338. 

3  St.  Louis  Mutual  Life  Ins.  Co.  v.  Graves,  6  Bush  (Ky.),  290.    See 
Frary  v.  Gusha,  59  Vt.  257. 

*  Ramadge  v.  Ryan,  9  Bing.  333. 
5  Sweet  v.  Wright,  62  Iowa,  215. 


INADMISSIBILITY    OF    OPINIONS.  33 

tection  of  travelers,  while  a  draw  was  open  in  the 
night  time.1  So  while  witnesses  cannot  be  per- 
mitted to  express  an  opinion  that  a  person  performed 
a  certain  service  in  the  manner  required  of  him  in 
the  proper  discharge  of  his  duty,  yet  it  is  competent 
for  any  witness  having  personal  knowledge  of  the 
facts  to  state  what  services  are  performed,  by  per- 
sons employed  in  a  certain  capacity,  in  the  discharge 
of  their  duty.2 

§  12.  Inadmissibility  of  Opinions  on  Abstract 
Questions  of  Science,  not  Related  to  the  Facts  in 
issue. — The  opinions  of  professional  witnesses  can- 
not be  asked  upon  mere  abstract  questions  of  science, 
having  no  proper  relation  to  the  facts  upon  which 
the  jury  are  to  pass.  The  opinion  of  an  expert,  to 
be  admissible,  on  the  direct  examination,  must 
always  be  predicated  upon,  and  relate  to  the  facts 
disclosed  by  the  evidence  in  the  case.3 

§  13.  Inadmissibility  of  Opinions  Based  on  Spec- 
ulative Data. — The  rule  is,  that  the  opinions  of  ex- 
perts are  not  admissible  when  based  on  merely  spec- 
ulative data.4  On  a  trial  for  murder,  where  the 
question  was  asked  whether  the  deceased  was  not 
addicted  to  the  excessive  use  of  snuff  and  violent 
fits  of  passion,  the  evidence  being  desired  as  a  basis 
for  the  introduction  of  expert  testimony,  to  prove 
that  such  habits  and  temperament  indicated  the 

1  Xowell  v.  Wright,  3  Allen  (Mass.),  166,  170.    And  see  Raymond  v. 
City  of  Lowell,  6  Cush.  (Mass.)  524,  531 ;  Grand  Rapids,  etc.  R.  R.  Co. 
v.  Ellison,  117  Ind.  234,  241. 

2  Allen  v.  Railroad  Co.,  57  Iowa,  626;  Missouri,  etc.  R.  R.  Co.  v. 
Mackey,  33  Kan.  299. 

3  Champ  v.  Commonwealth,  2  Met.  (Ky.)  18. 

4  Cooper  v.  State,  23  Texas,  336,  337.    And  see  Winter  v.  City  Council, 
79  Ala.  481. 

(3) 


34  EXPERT    TESTIMONY. 

probable  presence  of  a  condition  from  which  sudden 
death  might  well  have  resulted,  without  reference 
to  the  blow  given  by  the  prisoner,  it  was  held  that 
such  expert  testimony  could  not  be  received,  as  no 
evidence  had  been  introduced,  and  none  offered,  to 
prove  that  the  deceased  was  in  a  violent  fit  of  pas- 
sion, or  had  taken  an  overdose  of  snuff  at  the  time 
the  blow  was  struck.  The  court  ruled  the  testi- 
mony inadmissible,  as  being  speculative  in  its 
nature.1  And  where  it  did  not  appear  that  the  med- 
ical witness  had  been  present  at  the  post-mortem 
examination,  or  that  he  had  any  knowledge  of  the 
case,  or  the  kind,  or  extent  of  the  examination 
needed,  the  court  refused  to  allow  him  to  an- 
swer the  following  question:  "  For  the  purpose 
of  arriving  at  a  correct  conclusion  in  the  case 
of  the  death  of  a  person,  where  you  don't  know 
to  your  own  satisfaction  what  caused  the  death,  how 
long  a  time  should  two  men  give  to  a  post-mortem 
examination?  And  would  four  hours  be  sufficient?" 
So  an  engineer  has  not  been  permitted  to  express  an 
opinion  as  to  the  original  purpose  in  view,  in  build- 
ing a  wall  which  had  been  standing  between  twenty 
or  thirty  years.3  The  Supreme  Court  of  Mississippi 
has  held  it  to  be  incompetent  to  show  by  the  testi- 
mony of  professional  persons,  in  impeachment  of  the 
mother's  testimony,  in  a  prosecution  for  bastardy, 
that  it  was  highly  improbable  that  impregnation 
could  be  produced  by  the  first  act  of  coition.4  Such 
testimony  was  said  to  be  too  uncertain,  indefinite, 
and  hypothetical  to  form  the  basis  of  judicial 

1  Ebos  v.  State,  34  Ark.  520. 

2  State  v.  Pike.  65  Me.  111. 

3  Sinnott  v.  Mullin,  82  Pa.  St.  342. 

4  Anonymous,  37  Miss.  54. 


ADMISSIBILITY    OF    THE    TESTIMONY.  35 

action.  "The  courts,  in  our  opinion,"  it  is  said, 
"have  gone  quite  far  enough  in  subjecting  the  life, 
liberty  and  property  of  the  citizen  to  the  mere  spec- 
ulative opinions  of  men  claiming  to  be  experts  in 
matters  of  science,  whose  confidence,  in  many  cases, 
bears  a  direct  similitude  and  ratio  to  their  ignorance. 
We  are  not  disposed  to  extend  this  doctrine  into  the 
field  of  hypothetical  conjecture  and  probability,  and 
to  give  certainty  as  evidence,  to  that  which,  in  its 
very  nature,  mus,t  be  wholly  uncertain  and  unsatis- 
factory; dependent  on  circumstances  and  conditions 
entirely  secret,  hidden  and  unknown,  as  facts,  and 
without  a  knowledge  of  wrhich,  neither  science  nor 
experience,  could  afford  us  the  remotest  informa- 
tion." 

But  an  expert,  speaking  on  a  question  of  science, 
can  be  asked,  in  presence  of  a  given  effect,  of  what 
causes  it  either  was,  or  might  be  the  resultant. 
Such  an  inquiry  is  not  regarded  as  speculative  in 
any  objectionable  sense,  but  is  a  common  and  proper 
mode  of  examination.1  One,  however,  who  is  not 
an  expert,  cannot  ordinarily  give  his  opinion  as  to 
the  cause  of  a  given  effect.2 

§  14.  Admissibility  of  the  Testimony  of  Experts 
Who  Have  Made  Ex  Parte  Investigations. — In  many 
cases  it  is  no  doubt  advisable  that  notice  should  be 
given  to  the  opposing  interest  of  an  intention  to 
have  experts  make  an  investigation  of  the  facts  in- 
volved in  the  particular  case.  And  whenever  prac- 
ticable it  would  be  proper  that  such  notice  should  be 
given.  Of  course,  in  the  case  of  public  officers  car- 
rying on  an  investigation  immediately  after  the  com- 

1  Moyer  v.  X.  Y.  Central,  etc.  R.  R.  Co.,  98  N.  Y.  646. 

2  Shaw  v.  Susquehanna  Boom  Co.,  125  Pa.  St.  324. 


36 


EXPERT   TESTIMONY. 


mission  of  a  crime,  their  public  action  may  no  doubt 
be  considered  adequate  notice  of  their  proceedings 
to  all  parties.  But  the  question  has  been  raised 
whether  notice  is  not  essential  when  it  is  desired  to 
make  an  examination  after  the  preliminary  inquiries 
conducted  by  the  magistrates  have  been  terminated. 
The  opinion  has  been  expressed  by  distinguished 
writers  on  medical  jurisprudence  that  not  only  is 
notice  to  opposing  interests  desirable  in  such  cases, 
but  that  "there  can  be  no  question  that  when  the 
question  comes  fairly  up  such  examination,  when 
taken  flagrantly  ex  parte  at  a  time  when  there  could 
readily  have  been  notice  to  the  opposite  side,  will 
be  ruled  out  as  inadmissible."  In  this,  we  think, 
they  are  mistaken;  not  only  has  the  practice  been 
to  receive  the  testimony  of  experts  who  have  made 
ex  parte  investigations,  but,  in  our  opinion,  it  is  en- 
tirely proper  that  the  testimony  should  be  allowed 
to  go  to  the  jury,  whose  duty  it  is  to  determine  the 
weight  to  be  accorded  to  it  in  the  light  of  all  the 
circumstances,  the  character  of  the  experts,  the  care 
and  skill  with  which  they  appear  to  have  carried  on 
their  investigations,  and  the  manner  in  which  they 
sustain  themselves  on  the  cross-examination.  No 
necessity  exists  for  excluding  the  testimony  of  an 
expert  as  to  the  facts  which  he  has  learned  merely 
because  his  knowledge  of  the  facts  was  acquired  at 
a  time  and  place  when  the  opposite  party  was  not 
present.  Both  on  principle  and  authority  such  tes- 
timony is  admissible  in  evidence.2 

When  a  post-mortem  examination  of  a  deceased 

1  Wharton  and  Stile's  Medical  Jurisprudence,  Sec.  1246. 

2  People  v.  Foley,  64  Mich.  148,  (1887)  ;    State  v.  Leabo,  89  Mo.  247, 
(1886)  ;  State  v.  Brooks,  92  Mo.  542,  579,  (1887)  ;  State  v.  Bowman,SO  N. 
C.  432,  437,  (1879). 


ADMISSIBILITY    OF    THE   TESTIMONY.  37 

person  is  made,  the  admissibility  of  the  testimony 
of  the  physicians  who  made  it  does  not  at  all  de- 
pend on  the  thoroughness  of  the  examination  which 
they  made.1  In  the  case  cited,  the  question  was 
whether  death  had  been  caused  by  internal  disease 
or  external  violence.  And  the  physicians  were  al- 
lowed to  express  an  opinion  thereon,  although  their 
examination  had  not  been  sufficiently  thorough  to 
enable  them  to  state  that  no  other  cause  existed 
than  the  one  they  assigned,  to  which  the  death  could 
be  attributed. 

1  State  v.  Porter,  34  Iowa,  131, 134. 


38  EXPERT    TESTIMONY. 


CHAPTER  II. 

THE  COMPETENCY  OF  EXPERT  WITNESSES. 

SECTION. 

15.  The  Qualification  of  the  Witness  to  Testify  as  an  Expert  Must  First 

be  Shown. 

16.  The  Competency  of  the  Witness  a  Question  for  the  Court. 

17.  Preliminary  Examination  of  the  Expert. 

18.  Competency  of  Experts  Whose  Knowledge  is  Derived  from  Ex- 

perience. 

19.  Competency  of  Experts  Whose  Knowledge  is  Derived  from  Study. 

20.  Competency  of  Experts  Whose  Knowledge  is  Derived  from  Ob- 

servation. 

21.  Upon  What  the  Competency  of  Experts  Rests. 

22.  The  Competency  of  the  Witness  as  a  Subject  of  Review  in  an 

Appellate  Court. 

23.  How  the  Objection  to  the  Competency  Should  be  Taken. 

24.  Competency  as  Dependent  on  Whether  the  Expert  has  Heard  the 

Testimony. 

25.  Competency  of  Experts  in  Particular  Cases. 

§15.  The  Qualification  of  the  Witness  to  Testify 
as  an  Expert  Must  First  be  Shown. — It  having  been 
determined  that  the  subject  concerning  which  the 
witness  is  to  testify  is  one  upon  which  the  opinion 
of  an  expert  can  be  received,  the  next  question 
which  arises  is  whether  the  witness  is  possessed  of 
the  qualifications  necessary  to  entitle  him  to  testify 
as  an  expert.  That  he  is  possessed  of  the  requisite 
qualifications  must  appear  in  evidence  before  he  can 


COMPETENCY    OF  WITNESSES.  39 

properly  be  permitted  to  give  expert  testimony.1 
It  would  be  as  improper  to  allow  a  witness  to  testify 
as  an  expert  without  first  showing  that  he  was  pos- 
sessed of  the  peculiar  knowledge  or  skill  which  one 
must  have  to  be  an  expert,  as  it  would  be  to  allow 
secondary  evidence  of  the  contents  of  a  lost  paper 
without  having  first  shown  that  the  paper  was  lost, 
and  that  a  diligent  and  thorough  search  for  it  had 
been  made  without  finding  it.2 

§16.  Competency  of  the  Witness  a  Question  for 
the  Court. — The  question  whether  the  witness  pos- 
sesses the  necessary  qualifications  to  render  him 
competent  to  testify  in  the  character  of  an  expert, 
is  a  preliminary  question  addressed  to  the  court, 
which  should  be  satisfied  upon  that  point,  by  the 
presentation  of  proper  evidence.3  The  question 
must  be  determined  by  the  court,  and  cannot  be 


1  Chicago  &  Alton  R.  R.  Co.  v.  Springfield  &  Northwestern  R.  R.Co., 
67  111.  142;  Heald  v.  Thing,  45  Me.  392;  State  v.  Secrest,  80  N.  C.  450; 
Washington  v.  Cole,  6  Ala.  212;  Tullis  v.  Kidd,  12  Ala.  648;  State  v. 
Ward,  29  Vt.  225,  236;  Tyler  v.  Todd,  36  Conn.  2J8,  221;  Sandwich 
Mnfg.  Co.  v.  Nicholson,  32  Kan.  666;  Citizens'  Gas  Light  &  Heating 
Co.  v.  O'Brien,  15  Brad.  (111.)  400,  409;  Harris  v.  Township  of  Clinton, 
64  Mich.  457. 

2  See  Jones  v.  Tucker,  41  N.  H.  546. 

3  Nelson  v.  Sun  Mut.  Ins.  Co.,  71  N.  Y.  453,  460;  Lincoln  v.  Inhab- 
itants of  Barre,   5  Gush.  591;  Flynt  v.  Bodenhamer,  80  N.  C.  205,  207; 
Gulf  City  Ins.  Co.  v.  Stephens,  52  Ala.  121 ;  Forgery  v.  First  National 
Bank,  66  Ind.  123;  Davis  v.  State,  35  Ind.  496;  Boardman  v.  Woodman, 
47  N.  H.  120, 135;  Sorg  v.  First  German  Congregation,  63 Penn.  St.  156; 
U.   S.  v.  Kilpatrick,  16  Fed.    Rep.    765,  772;    Chandler  v.  Thomp- 
son, 30  Fed.  Rep.  38;  State  v.  Cole,  63  Iowa,  695;  Broquet  v.  Tripp,  36 
Kan.  700;  Carpenter  v.  Corinth,  58  Vt.  214,  216;  Reynolds  v.  Lounsbury, 
6  Hill  (N.  Y.),  534;  Sikes  v.  Paine,  10  Ired.  (N.  C.)  Law,  282;  State 
v.  Secrest,  80  N.  C.  450;  Washington  v.  Cole,  6  Ala.  212;  Tullisv.Kidd, 
12  Ala.  648;  Woodman  v.  Dana,  52  Me.  9,13;  Delaware,  etc.  Steam  Tow- 
boat  Co.  v.  Starrs,  69  Penn.  St.  36;   Jones  v.  Tucker,  41  N.  H.  546; 
Snowden  v.  Idaho  Quartz  Mnfg.  Co.,  55  Cal.  450;  McEwen  v.  Bigelow, 
40  Mich.  217 ;  Ives  v.  Leonard,  50  Mich.  296 ;  State  v.  Ward,  29  Vt.  225,  236. 


40  EXPERT   TESTIMONY. 

referred  by  it  to  the  jury.1  And  in  determining 
whether  the  witness  is  a  person  of  skill,  in  the  par- 
ticular department  or  subject-matter  in  which  his 
opinion  is  desired,  very  much  is  left  to  the  discretion 
of  the  presiding  judge.2  The  right  to  review  his 
decision  in  an  appellate  court  will  be  subsequently 
considered. 

In  a  case  tried  by  a  referee,  the  qualification  of 
the  witness  to  give  opinion  evidence  is  a  question 
to  be  determined  by  the  referee  at  the  trial.3 

§  17.  Preliminary  Examination  of  Expert. — For 
the  purpose  of  determining  the  competency  of  the 
witness,  a  preliminary  examination  takes  place,  in 
which  the  witness  may  be  asked  to  state  his  ac- 
quaintance with  the  subject-matter  in  reference  to 
which  his  opinion  is  desired,  and  what  he  has  done 
to  qualify  himself  as  an  expert  in  that  particular 
department  of  inquiry.*  But  the  opinion  of  the 
witness  as  to  whether  he  considers  himself  quali- 
fied to  give  an  opinion  as  an  expert  would  seem  to 
be  irrelevant,  as  that  is  a  question  for  the  court 
alone.5  The  court  is  also  at  liberty  to  examine  other 

1  Fairbank  v.  Hughson,  58  Cal.   314.     In  this    case    the    Supreme 
Court  of  California  reversed  a  judgment,  because  the  trial  court  allowed 
a  book-keeper  in  a  bank  to  testify  (having  been  offered  as  an  expert  in 
handwriting),  with  the  remark  :     "I  shall  hold  it  is  for  the  jury  to  say 
how  much  he  knows  about  it.    I  will  admit  the  testimony."    And  see 
Heacock  v.  State,  13  Tex.  Ct.  of  App.  97, 131. 

2  Hills  v.  Home  Ins.   Co.,  129  Mass.  345;  Chandler  v.  Jamaica  Pond 
Aqueduct,  125  Mass.  544,  551 ;  Tucker  v.  Massachusetts  Central  R.  R. 
Co.,  118  Mass.  546;  Lawrence  v.  Boston,   119  Mass.  126;  Lawton  v. 
Chase,  108  Mass.  238,  241 ;  Berg  v.  Spink,  24  Minn.  138, 139 ;  Howard  v. 
Providence,  6  R.  I.  516;  Ardesco  Oil  Co.  v.  Gilson,  63  Penn.  St.  146, 152; 
Krippner  v.  Biebl,  28  Minn.  139;  Sarle  v.  Arnold,  7  R.  I.  586;  Delaware, 
etc.  Steam  Towboat  Co.  v.  Starrs,  69  Penn.  St.  36. 

8  Goodwin  v.  Scott,  61  N.  H.  112. 
4  Boardman  v.  Woodman,  47  X.  H.  120,  135. 

5Boardman  v.  Woodman,  47  N.  H.  120;  Naughton  v.  Stagg,  4  Mo. 
App.  27. 


PRELIMINARY    EXAMINATION    OF    EXPERT.  41 

witnesses  to  aid  it  in  determining  whether  he  is  qual- 
ified to  draw  correct  conclusions  upon  questions 
relating  to  the  science  or  trade  in  relation  to  which 
he  is  to  be  examined.1  In  a  case  where  it  was  con- 
tended that  no  evidence  of  the  qualifications  of  a 
person  to  testify  as  an  expert  was  admissible  until 
the  expert  himself  had  been  introduced  as  a  witness 
upon  the  stand,  and  an  opportunity  afforded  for  a 
cross-examination,  the  court  declared  that  its  atten- 
tion had  not  been  called  to  any  such  rule,  and  it 
thought  none  such  existed,  and  added:  "Any  evi- 
dence tending  to  show  that  the  witness  called  as  an 
expert  possesses  the  requisite  knowledge  and  skill 
is,  we  think,  admissible  for  what  it  is  worth."  On 
this  preliminary  examination  the  court  simply  de- 
cides upon  proof  of  the  opportunities  which  the 
witness  has  had  for  acquiring  special  knowledge 
and  experience  in  the  subject-matter,  that  the  jury 
may  hear  his  opinion  as  a  person  of  science  and 
skill.3 

It  is  not  easy  for  an  incompetent  person  to  sus- 
tain himself  in  the  character  of  an  expert  witness. 
Consequently,  on  the  preliminary  question  as  to  the 
qualifications  of  the  witness  to  testify  as  an  expert, 
it  is  not  often  the  case  that  the  subject  is  very  fully 
gone  into.  The  witness  is  usually  allowed,  after 
slight  evidence  as  to  his  qualifications  has  been 
given,  to  testify  in  the  character  of  an  expert,  it 
being  left  to  counsel  on  the  cross-examination,  and 
otherwise,  to  show  the  absence  of  qualification,  and 

1  Mendum  v.  Commonwealth,  6  Rand.  (Va.)  704,  710;  Tullis  v.  Kidd, 
12  Ala.  648;  Laros  v.  Commonwealth,  84  Pa.  St.  200;  Mason  v.  Phelps, 
48  Mich.  127. 

2  State  v.  Maynes,  61  Iowa,  119. 

8  State  v.  Secrest,  80  X.  C.  450,  457. 


42  EXPERT    TESTIMONY. 

the  consequent  worthlessness  of  the  testimony. 
But  if  opposing  counsel  think  the  evidence  of  quali- 
fication is  insufficient  to  establish  the  right  of  the 
witness  to  testify  as  an  expert,  their  proper  course 
is  to  object  on  that  specific  ground.  For  if  no  such 
objection  is  interposed  the  court  may  assume  that 
counsel  is  satisfied  as  to  the  competency  of  the  wit- 
ness,1 and  counsel  may,  as  a  consequence,  be  pre- 
vented from  having  the  matter  reviewed  in  the 
higher  court.2 

When  it  is  made  to  appear  prima  facie  that  the 
witness  possesses  the  qualifications  of  an  expert,  the 
court  may  admit  the  testimony,  and  is  not  bound  to 
allow  a  preliminary  cross-examination.3  Opposing 
counsel  have  the  opportunity  on  the  cross-examina- 
tion in  chief  to  impeach  his  skill  and  test  his  com- 
petency. 

Of  course  it  is  error  to  allow  a  witness  to  testify 
as  an  expert  without  some  preliminary  examination 
as  to  his  qualifications.4  But  whether  counsel  can 
avail  themselves  of  the  error  will  depend  on  cir- 
cumstances, elsewhere  considered.5 

§  18.  Competency  of  Experts  Whose  Knowledge 
is  Derived  from  Experience. — We  have  seen  that  the 
ground  on  which  expert  testimony  is  received  in 
evidence  is,  that  the  subject  in  controversy  depends 
on  science  or  peculiar  skill  or  knowledge.  We  have 
also  seen  that  before  a  witness  can  be  allowed  to 
give  testimony  as  an  expert  it  must  be  made  to 

1  See  The  State  v.  Cole,  63  Iowa,  695,  699. 

2  See  section  22. 

8  Sarle  v.  Arnold,  7  R.  I.  582;  City  of  Fort  Wayne  v.  Combs,  107  Ind. 
75,  85. 

4  State  v.  Secrest,  80  N.  C.  450. 

5  See  section  23. 


COMPETENCY    OF     EXPERTS.  43 

appear  that  he  is  an  expert  or  experienced  person 
in  the  matter  concerning  which  he  is  to  testify. 
The  peculiar  skill,  knowledge  or  experience  which 
qualifies  one  to  testify  as  an  expert  is,  as  a  general 
rule,  that  which  has  been  acquired  by  the  witness 
in  his  trade,  profession  or  calling.1  A  person  en- 
gaged in  a  particular  profession,  trade  or  calling  is 
presumed  to  understand  thoroughly  the  questions 
pertaining  to  such  profession,  trade  or  calling,  and 
to  be  competent  to  testify  in  respect  to  the  same.* 

But  in  such  cases  the  competency  of  the  witness 
to  testify  does  not  depend  on  his  being  actually  en- 
gaged in  the  practice  of  the  profession,  trade  or 
calling  at  the  time  he  gives  his  testimony,  he  hav- 
ing been  previously  employed  therein.3  Hence  one 
who,  at  the  time  he  was  offered  as  a  witness  was  a 
student  at  law,  has  been  allowed  to  testify  as  an  ex- 
pert in  the  tanning  business,  he  having  formerly 
been  employed  in  that  trade.4  "There  was  nothing 
in  the  change  of  employment,  from  tanning  hides 
to  the  study  of  the  law,  which  would  necessarily 
deprive  him  of  the  skill  acquired  in  his  original 
trade." 

The  mere  fact  that  the  witness  was  at  one  time 
and  in  former  years  engaged  in  the  practice  of  the 
art  or  trade  would  not,  in  every  case,  make  it  the 
duty  of  the  court  to  allow  him  to  testify  as  an  ex- 
pert in  regard  to  the  same.  In  a  case  where  one 

1  Lincoln  v.  Inhabitants  of  Barre,  5  Gush.  591. 

2  Missouri,  etc.  R.  R.  Co.  v.  Finley,  38  Kan.  550. 

3  Vander  Donckt  v.  Thellusson,  8  Man.  G.  &  S.  (65  Eng.  C.  L.)  812. 
"Whatever  the  line  of  business  he  now  follows,  if  he  was  an  expert  be- 
fore, he  can  hardly  be  said  to  be  less  so  now,"  per  Mr.  Justice  Maule. 
See,  too,  Roberts  v.  Johnson,  58  X.  Y.  613;  Tullis  v.  Kidd,  12  Ala.  648, 
650. 

4  Bearss  v.  Copley,  10  N.  Y.  95. 


44  EXPERT   TESTIMONY. 

was  offered  as  an  expert  in  a  matter  of  plumbing, 
and  it  appeared  that  he  had  been  a  plumber  many 
years  ago,  but  had  not  been  such  for  twenty  years, 
it  was  held  that  the  trial  court  committed  no  error 
in  declining  to  receive  his  testimony.1  It  is  evident 
that  in  all  such  cases  the  question  of  competency 
must  depend  largely  on  the  nature  of  the  trade  or 
occupation,  as  well  as  on  the  length  of  time  since 
the  witness  abandoned  it. 

The  kernel  of  this  character  of  expert  is  said  to  be 
the  fact  of  peculiar  knowledge  or  skill  derived  from 
experience  in  the  particular  matter  in  question.2 
And  the  court  should  be  satisfied  that  he  is  pos- 
sessed of  this  peculiar  knowledge  or  skill  at  the 
time  he  gives  his  testimony.  If  not  possessed  by 
the  witness  at  that  time  it  avails  nothing  that  he 
was  possessed  of  it  at  some  former  time,  but  if  he  has 
practical  skill  or  scientific  knowledge  and  experi- 
ence as  to  the  matters  under  investigation,  he  is 
competent  to  testify.3 

We  have  stated  at  the  beginning  of  this  section 
that  the  peculiar  skill  or  knowledge  which  entitles 
a  witness  to  testify  as  an  expert  is  usually  that 
which  the  witness  has  derived  from  his  trade,  pro- 
fession or  calling.  While  this  is  usually  the  case  it 
has  been  held  to  be  not  in  every  case  necessarily 
so.  If  the  witness  has  been  so  instructed  by  ex- 
perience as  to  have  peculiar  sources  of  knowl- 
edge to  guide  him  on  the  subject  under  investi- 
gation, fitting  him  to  answer  with  more  accuracy 
than  others,  he  has  been  said  to  be  a  competent 
witness  to  express  an  opinion  in  relation  to  the 

1  McEwen  v.  Bigelow,  40  Mich.  215. 

2  Wright  v.  Williams'  Estate,  47  Vt.  222,  223. 

3  The  Sioux  City,  etc.  E.  R.  Co.  v.  Finlayson,  16  Neb.  578,  587. 


COMPETENCY    OF    EXPERTS.  45 

same.1  The  matter  was  well  put  by  Mr.  Justice 
Talcott  of  New  York,  when  he  said:  "The  opinions 
of  experts  are  only  admissible  when  it  appears  from 
the  nature  of  their  avocations,  or  from  their  testi- 
mony concerning  their  experience,  that  the  matter 
inquired  about  involves  some  degree  of  science  or 
skill  which  they  have  made  use  of,  so  that  from  ex- 
perience they  are  fitted  to  answer  the  question  pro- 
pounded with  more  accuracy  than  others,  who  may 
not  have  been  called  upon  to  employ  science  or  ex- 
ercise skill  on  the  subject."  In  the  Court  of  Ap- 
peals of  Maryland,  the  principle  is  stated  as  follows: 
"When  the  subject  under  investigation  is  one  requir- 
ing special  skill  and  knowledge,  they  (the  jury)  may 
be  aided  by  the  opinions  of  persons  whose  pursuits  or 
studies  or  experience  have  given  them  a  familiarity 
with  the  matter  in  hand." 

In  the  Supreme  Court  of  Pennsylvania,  it  is  said: 
"It  was  said  by  the  present  chief  justice  that  no 
clearly  defined  rule  can  be  found  as  to  what  consti- 
tutes an  expert.  Much  depends  on  the  nature  of 
the  question  in  regard  to  which  an  opinion  is  asked. 
While  undoubtedly  it  must  appear  that  the  witness 
has  enjoyed  some  means  of  special  knowledge  or 
experience,  no  rule  can  be  laid  down  in  the  nature 
of  things  as  to  the  extent  of  it." 

§  19.  Competency  of  Experts  Whose  Knowledge 
is  Derived  from  study. — A  witness,  otherwise  quali- 
fied, may  express  an  opinion  on  a  matter  pertaining 
to  his  special  calling  or  profession,  although  his 
knowledge  of  that  particular  matter  has  been  de- 

1  See  Hand  v.  Church,  39  Hun  (X.  Y.),  304.  • 

2  Clark  v.  Bruce,  12  Hun  (N.  Y.),  271,  276. 

3  Baltimore,  etc.  E.  R.  Co.  v.  Leonhardt,  66  Md.  77,  78. 

4  Mouongahela  Water  Co.  v.  Stewartson,  96  Pa.  St.  436,  439. 


46  EXPERT   TESTIMONY. 

rived  from  study  rather  than  from  actual  experi- 
ence. It  is  the  doctrine  of  the  courts  that 
study  of  a  matter  without  practical  experience  in 
regard  to  it  may  qualify  a  witness  as  an  expert.1 
But  a  witness  cannot  testify  as  an  expert  on 
a  particular  matter  when  that  particular  matter  does 
not  pertain  to  his  special  calling  or  profession,  and 
his  knowledge  of  the  subject  of  inquiry  has  been 
derived  from  study  alone.  It  would  be  most  un- 
wise to  recognize  the  principle  that  a  person  might 
qualify  himself  to  testify  as  an  expert  in  a  particular 
case,  merely  by  devoting  himself  to  a  study  of  the 
authorities  for  the  purpose  of  giving  such  testimony, 
when  such  reading  and  study  is  not  in  the  line  of 
his  special  calling  or  profession.  A  lawyer  would 
not  be  competent  to  express  an  opinion  on  a  ques- 
tion of  medical  science,  from  information  which  he 
might  acquire  from  reading  medical  authorities 
bearing  on  such  question.  Neither  would  a  physi- 
cian be  qualified  to  express  an  opinion  on  a  ques- 
tion of  foreign  law,  from  information  which  he 
might  acquire  by  an  examination  of  legal  authori- 
ties. While  the  opinion  of  either  would  not  be 
inadmissible  on  a  question  lying  within  the  domain 
of  their  particular  department  of  science,  merely 
because  such  opinion  was  based  on  information  ac- 
quired from  books.  In  the  English  case  of  Collier 
v.  Simpson*  Mr.  Chief  Justice  Tindal  laid  down  the 
doctrine,  that  an  expert  could  be  asked  whether  in 
the  course  of  his  reading  he  had  found  so  and  so 
laid  down,  and  that  his  judgment  and  the  grounds 
of  it  could  be  founded  in  some  degree  on  books  as  a 

1  City  of  Fort  Wayne  v.  Combs,  107  Ind.  75,  87 ;  Howard  v.  Great 
AVestern,  etc.  Co.,  109  Mass.  384;  Swett  v.  Shumway,  102  Mass.  365. 

2  5  Car.  &  Payne,  73;  s.  c.,  24  Eng.  C.  L.  219. 


COMPETENCY    OF     EXPERTS.  47 

part  of  his  general  knowledge.  And  the  authority 
of  that  case  has  been  recognized  and  followed  in 
this  country. 

Thus  it  has  been  held  that  a  medical  man  may 
state  his  knowledge  of  a  particular  subject  in  med- 
ical science,  although  such  knowledge  was  not  de- 
rived from  experience  or  actual  observation,  but 
from  what  he  had  learned  from  reading  and  study- 
ing medical  authorities.1 

In  a  case  decided  in  the  Supreme  Court  of  Georgia, 
an  expert,  who  was  a  civil  engineer,  stated  the  rules 
for  the  construction  of  cuts  and  embankments  as 
such  rules  are  found  in  standard  works  on  engineer- 
ing, and  added:  "I  give  these  rules  solely  from 
what  I  recollect  of  the  books.  These  rules  are  found 
inMahan,  Gillespie  and  Gilmore,  and  many  others." 
The  court  held  that  "the  expert  was  competent  to 
testify.  Every  expert  derives  much  of  his  knowl- 
edge from  books  as  well  as  from  experience,  and  can 
give  his  opinion  based  upon  the  knowledge  acquired 
from  both  sources." 

In  the  same  way  a  teacher  of  natural  sciences, 
who  in  the  teaching  of  that  science  had  had 
occasion  to  investigate  the  gases  produced  by  the 
combustion  of  hard  coal,  was  held  competent  to 
testify  as  to  the  effect  upon  a  human  being  of 
breathing  poisonous  gases,  although  his  knowledge 
had  not  been  gained  by  actual  experience  and  ob- 
servation.3 


<  State  v.  Wood,  53  N.  H.  484;  State  v.  Terrill,  12  Rich.  (N.  C.)  321; 
Melvin  v.  Easley,  1  Jones  (X.  C.)  Law,  388. 

5  Central  R.  R.  Co.  v.  Mitchell,  63  Ga.  173;  s.  C.,  1  Am.  &  Eng.  R.  R. 
Cases,  145. 

6  Citizens'  Gas  Light,  etc.  Co.  v.  O'Brien,  19  Brad.  (111.)  231,  233. 


48  EXPERT   TESTIMONY. 

On  the  other  hand,  as  we  have  said,  study  alone 
does  not  qualify  one  to  express  an  opinion  on  a 
subject  not  pertaining  to  the  special  calling  or  pro- 
fession to  which  the  witness  belongs.  Thus,  where 
the  question  was  whether  the  editor  of  a  stock 
journal  who  had  read  extensively  on  the  subject  of 
"foot-rot"  could  testify  as  an  expert  in  relation  to 
that  disease,  it  was  held  that  he  could  not.  The 
subject  of  the  competency  of  experts,  whose  knowl- 
edge was  derived  from  study  only,  was  discussed 
with  such  force  and  clearness  as  to  warrant  its  repe- 
tition in  the  note  below.1  In  the  same  way  it  has 


7  In  Dole  v.  Johnson,  50  N.  H.  452,  a  Mr.  Waite,  editor  of  a  stock 
journal,  who  had  read  extensively  on  the  subject  of  "foot-rot,"  but  who 
was  without  practical  experience  as  to  the  treatment  of  the  disease, 
had  been  called  as  an  expert  on  the  question  whether  the  "foot-rot"  is 
evei  a  spontaneous  disease,  or  is  bred  only  by  contact.  Mr.  Justice 
Foster,  speaking  for  the  court,  said :  "Mr.  Waite  had  no  skill  what- 
ever, 'no  practical  experience  in  the  treatment  of  sheep  for  any  dis- 
ease;' that  he  must  then  have  had  special  and  peculiar  knowledge;  that 
he  must  have  been  really  a  man  of  science,  in  order  to  be  qualified  to 
give  an  opinion,  would  seem  to  be  a  settled  and  definite  rule  of  law. 
The  extent  of  Mr.  Waite's  qualification  is  thus  described :  'As  editor 
of  a  stock  jouinal,  he  had  read  extensively  on  the  subject  of  foot-rot.' 
The  object  of  all  testimony  in  courts  is  to  place  before  the  jury  a  knowl- 
edge of  facts  pertaining  to  the  case  under  consideration,  and  it  is  a 
serious  departure  from  this  purpose  ever  to  admit,  instead  of  actual 
knowledge,  mere  opinion,  however  correct  it  may  probably  be,  and 
therefore  opinion,  if  admitted  at  all,  should  be  as  nearly  approximated 
as  possible  to  the  actual  knowledge  of  fact  for  which  it  is  substituted ; 
and  it  should  always  be  required  of  an  expert,  that  he  should,  at  least, 
be  sufficiently  acquainted  with  the  subject-matter  of  his  testimony  to 
know  what  its  laws  are,  and  not  merely  to  conjecture  or  to  have  an  idea 
about  it.  That  is,  he  should  be  really  a  man  of  science.  The  science 
(especially  in  the  absence  of  skill),  which  an  expert  should  be  required 
to  possess  and  employ  on  a  given  subject,  implies  that  special  and  pecu- 
liar knowledge  acquired  only  by  a  course  of  observation  and  study,  and 
the  expenditure  of  time,  labor  and  preparation,  in  a  particular  employ- 
ment and  calling  of  life.  The  matter  of  our  present  consideration  is  of 
vast  importance.  *  *  * 

"We  admit  the  wisdom  of  the  rule  which,  permitting  a  man  of  genu- 
ine science  to  give  as  his  opinion  the  results  of  study  and  research  into 


COMPETENCY    OF    EXPERTS.  49 

been  held  that  a  lawyer  who  had  read  extensively 
on  the  subject,  and  who  had  listened  to  the  testi- 
mony of  experts  in  court,  was  not  competent  to  give 

books  of  acknowledged  authority,  yet  will  not  allow  such  books  to  be 
read  in  court  to  the  jury.  The  rule  is  founded  partly  in  the  delay  which 
would  thus  be  occasioned  to  the  business  of  courts,  and  partly  in  the 
idea  that  it  is  safer,  on  the  whole,  to  trust  to  the  judgment  of  learned 
men,  acquired  by  study,  observation  and  skill,  than  to  the  imperfect 
deductions  of  jurors,  hastily  derived  from  readings  not  familiar  to  them, 
unassisted  by  study,  examination  and  comparison  of  kindred  subjects 
(though  we  must  confess  that,  in  a  particular  case,  we  may  have  little 
doubt  that  a  page  fromYouatt  or  Morrell  would  be  a  safer  guide  for  the 
jury  than  the  opinion  of  such  a  witness  as  Mr.  Waite).  But  so  long  as 
the  opinions  of  the  most  distinguished  and  most  learned  authors  in  the 
world,  expressed  through  the  direct  and  pure  media  of  their  celebrated 
works,  are  thus  excluded  from  the  jury,  surely  it  can  be  neither  wise 
nor  prudent  to  admit  opinions  unsustained  by  the  slightest  experience 
or  even  observation,  the  deductions  of  readings  at  best  scanty  and 
superficial,  because  not  pertaining  to  the  special  study  and  business  of 
the  reader.  *  *  * 

"Of  course  it  must  be  admitted  that  the  testimony  of  knowledge  and 
opinion,  obtained  from  mere  reading,  without  study,  reflection  or  ob- 
servation, is  no  more  than  a  relation  by  the  witness  of  that  which  the 
policy  of  the  law  excludes,  namely,  the  books  themselves  which  the 
witness  has  read. 

"The  limit  of  safety  in  this  direction  is  reached,  it  would  seem,  when 
we  admit,  as  the  practice  in  this  State  is,  the  opinions  of  medical  men, 
for  instance,  with  regard  to  a  disease  which  in  actual  practice  they  may 
not  have  treated,  but  concerning  which  the  science  and  skill  of  long 
experience  in  the  affinities  and  analogies  of  the  subject  have  prepared 
them  to  speak  with  confidence,  from  a  knowledge  of  the  rules  and  laws 
governing  the  special  subject  of  inquiry.  *  *  * 

"And  so  the  practice  in  this  State  permits  the  skilled  practitioner, 
who  has  made  himself  familiar  with  the  science  of  medicine  or  surgery 
by  a  long  course  of  study  and  practical  experience  with  kindred  sub- 
jects, to  testify  as  an  expert;  and  common  sense  demands  that  such  a 
man  shall  have  respect  given  to  bis  opinion,  though  he  may  have  had 
no  practical  experience  in  a  particular  case. 

"But  how  is  it  in  the  case  of  this  witness?  He  was  not  a  veterinarian, 
nor  any  other  kind  of  a  physician  or  surgeon.  'He  had  had  no  practi- 
cal experience  in  the  treatment  of  sheep.'  nor  of  any  person  or  thing 
'for  any  disease.'  He  was  the  editor  of  a  newspaper,  devoted,  not  to 
the  special  consideration  of  this,  nor  even  of  kindred  subjects,  but  em- 
bracing the  very  large  class  of  matters  ordinarily  included  in  a  stock 
journal.  His  newspaper  was,  probably,  the  ordinary  collection  of 


50  EXPERT   TESTIMONY. 

his  opinion  as  to  the  symptoms  and  causes  of  Texas 
fever  as  affecting  cattle."1 

On  the  subject  of  opinions  based  on  study,  the 
following  excerpt  from  an  opinion  pronounced  by 
Mr.  Justice  Campbell  is  of  interest,  and  therefore 
given  at  length.  He  says:  "No  one  has  any  title 
to  respect  as  an  expert,  or  has  any  right  to  give  an 
opinion  upon  the  stand,  unless  as  his  own  opinion; 
and  if  he  has  not  given  the  subject  involved  such 
careful  and  discriminating  study  as  has  resulted  in 
the  formation  of  a  definite  opinion,  he  has  no  busi- 

miscellaneous  literature  and  news  items,  concerning  all  the  diverse 
matters  embraced  within  the  range  of  such  a  production,  its  editor  hav- 
ing and  making  no  pretension  to  veterinary  skill  and  practice. 

"It  being  evident,  too,  that  in  the  line  of  his  comprehensive  reading 
and  study  the  subject  of  the  diseases  of  animals  was  by  no  means  a 
specialty,  the  element  of  editorship  has  in  reality  nothing  to  do  with 
the  party's  qualifications.  'As  an  editor,'  it  is  said  'he  had  read  exten- 
sively on  the  subject  of  foot-rot.'  So,  as  a  lawyer,  prosecuting  or  de- 
fending a  man  charged  with  murder,  I,  who  am  not  a  doctor,  may  have 
read  extensively  on  the  subject  of  the  effects  of  strychnine  and  its  mani- 
festations after  death,  and,  as  the  result  of  my  reading,  I  might  well 
form  the  opinion  that  enough  of  strychnine  might  be  administered  to 
cause  death,  without  a  possibility  that  a  medical  man  or  chemist  could 
be  able  to  detect  it  in  the  stomach  or  blood  of  the  deceased ;  but,  it  is  to 
be  hoped,  my  opinion  upon  this  subject  would  not  be  allowed.  And,  as 
a  lawyer,  also,  in  the  examination  of  this  case,  I  have,  in  fact,  read  ex- 
tensively on  the  subject  of  foot-rot,  the  books  of  Morrell,  Youatt  and 
Clock.  *  *  * 

"As  the  result  of  my  reading,  I  should,  perhaps,  be  inclined  to  believe 
the  disease  is  not  contagious,  but  my  opinion  is  no  more  admissible  than 
the  books  themselves  of  these  authors.  They  are  men  of  acknowledged 
science  and  skill.  The  witness  in  this  case  can  have  examined  no 
better  authority.  Why  should  his  opinion,  without  practical  skill  and 
experience,  be  received,  and  theirs  rejected? 

"In  view  of  all  these  considerations,  and  of  the  evidence  reported  by 
the  case  submitted  to  us,  we  are  strongly  of  the  opinion  that  the  wit- 
ness, having  confessedly  no  veterinary  skill  nor  practice,  having  also 
no  professional  education,  not  being  in  any  true  sense  a  man  of  science, 
because  not  instructed  and  prepared  by  a  long  course  of  habit  of  study 
concerning  the  diseases  of  domestic  animals,  did  not  possess  the  legal 
qualifications  of  an  expert." 

1  Missouri,  etc.  K.  E.  Co.  v.  Finley,  38  Kan.  550,  560. 


COMPETENCY    OF    EXPERTS.  51 

ness  to  give  it.  Such  an  opinion  can  only  be  safely 
formed  or  expressed  by  persons  who  have  made  the 
scientific  questions  involved  matters  of  definite  and 
intelligent  study,  and  who  have  by  such  application 
made  up  their  own  minds.  In  doing  so,  it  is  their 
business  to  resort  to  such  aids  of  reading  and  study 
as  they  have  reason  to  believe  contain  the  informa- 
tion they  need.  This  will  naturally  include  the 
literature  of  the  subject.  But  if  they  have  only 
taken  trouble  enough  to  find  or  suppose  they  find 
that  certain  authors  say  certain  things,  without 
further  satisfying  themselves  how  reliable  such 
statements  are,  their  own  opinion  must  be  of  very 
moderate  value,  and  whether  correct  or  incorrect, 
cannot  be  fortified  before  a  jury  by  statements  of 
what  those  authors  hold  on  the  subject.  The  jury 
are  only  concerned  to  know  what  the  witness  thinks, 
and  what  capacity  and  judgment  he  shows  to  make 
his  opinion  worthy  of  respect." 

§  20.  Competency  of  Experts  Whose  Knowledge 
is  Derived  from  Observation  Outside  Their  Special 
Calling-. — Mere  opportunities  for  special  observation 
have  been  held  insufficient  in  some  cases  to  render 
a  witness  competent  to  testify  as  an  expert.  For 
example,  a  painter  by  trade  who  had  worked  at  his 
calling  for  twenty  years,  and  who  swore  that  his  ex- 
perience as  a  painter  had  enabled  him  to  judge  of 
the  quality  and  character  of  carpenter  work  and 
material,  was  held  incompetent  to  testify  as  an  ex- 
pert respecting  the  workman-like  manner  in  which 
the  carpenter  and  joiner  work  was  done  upon  a 
house  on  which  he  did  the  painting.2  So  a  miller 

1  People  v.  Millard,  53  Mich.  63,  76. 

2  Kilbourne  v.  Jennings,  38  Iowa,  533.     "A  painter,  in  virtue  of  the 
special  knowledge  and  skill  acquired  in  his  employment  of  painting," 


52  EXPERT   TESTIMONY. 

was  held  not  a  competent  witness  to  give  an  opinion 
as  to  the  skillfulness  of  work  done  on  a  mill,  that 
the  construction  of  its  machinery  was  improper, 
although  a  millwright  would  be  a  competent  witness 
in  such  an  inquiry.1  And  where  the  investigation 
relates  to  the  quality  of  iron,  it  was  held  that  the 
witness  must  show  .himself  to  be  skilled  in  the  busi- 
ness of  manufacturing  iron,  and  that  "a,  clerk  or 
book-keeper,  although  he  might  have  been  long 
employed  in  an  iron  foundry,  and  might  have  seen 
the  business,  was  not  competent  to  testify  as  an  ex- 
pert, unless  he  could  show  by  his  testimony  that  he 
had  given  the  subject  of  examining  and  testing  iron 
special  attention  and  study,  and  had  experience  in 
that  art.  If  he  relied  upon  the  decision  of  others,  or 
upon  the  marks  on  the  iron,  he  was  not  an  expert." 

But  in  a  case  in  New  York,  a  person  Avho  had 
been  a  carpenter  and  house  joiner  by  trade  for 
twenty-two  years,  and  had  worked  some  on  stone 
buildings,  some  on  brick  and  some  on  cobble-stone, 
but  mostly  on  wooden,  buildings,  was  held  compe- 

said  the  court,  "could  learn  nothing  of  the  proper  mode  of  framing  to- 
gether materials  for  the  construction  of  a  building.  Whatever  knowl- 
edge he  acquires  respecting  carpenter  and  joiner  work,  must  be  gained 
from  mere  observation  and  attention.  But  any  observant  man,  whose 
attention  has  been  specially  directed  to  buildings  in  process  of  erection 
and  erect'ed,  could  have  equal  means  of  knowledge,  and  could  be  equally 
qualified  to  give  an  opinion.  But  the  opinion  of  a  witness  is  not  to  be 
received  merely  because  he  has  had  some  experience,  or  greater  oppor- 
tunity of  observation  than  others,  unless  the  experience  relates  to  mat- 
ters of  skill  and  science.  It  is  true  the  witness  in  question  could  tell 
whether  a  joint  was  a  close  or  an  open  one.  And  any  observant  person, 
without  special  instruction  or  skill,  could  do  as  much.  But  it  is  apparent 
that,  to  admit  as  an  expert  every  person  who  had  availed  himself  of  an 
opportunity  to  observe  a  structure,  and  who  had  acquired  a  knowledge 
as  to  the  closeness  of  the  joints,  would  overturn  entirely  the  rule  re- 
specting expert  testimony." 

1  Walker  v.  Fields,  28  Ga.  237. 

2  Pope  v.  Filley,  9  Fed.  Rep.  65,  66. 


COMPETENCY    OF    THE    EXPERT.  53 

tent  to  express  an  opinion  whether  a  wall  was  worth 
covering.  The  court  thought  he  was  as  competent  to 
express  such  an  opinion  as  a  mason  wonld  have  been.1 
§  21.  Upon  what  the  Competency  of  the  Expert 
Rests. — The  right  of  a  witness  to  give  expert  testi- 
mony depends,  therefore,  upon  either  the  actual 
experience  of  the  witness  with  respect  to  the  subject 
under  investigation,  or  his  previous  study  and 
scientific  research  concerning  the  same,  and  some- 
times on  both  combined.2  Certainly,  one  who  has 
neither  made  a  special  study  of  the  subject  on  which 
his  opinion  is  desired,  nor  had  any  experience  in 
relation  to  the  same,  cannot  be  allowed  to  give  ex- 
pert testimony  concerning  it,  although  the  subject 
under  investigation  relates  to  science  and  the  wit- 
ness is  a  scientific  man.3  Of  course,  no  exact  test 
can  be  laid  down  by  which  one  can  determine  with 
mathematical  precision  how  much  skill  or  experi- 
ence a  witness  must  possess  to  qualify  him  to  testify 
as  an  expert.4  That  question  rests  within  the  fair 
discretion  of  the  court  whose  duty  it  is  to  decide 
whether  the  experience  or  study  of  the  witness  has 
been  sucji  as  to  make  his  opinions  of  any  value.5 
The  witness  should  have  at  least  a  general  knowl- 
edge of  the  matter  about  which  he  is  called  to  tes- 
tify,6 but  it  is  by  no  means  necessary  that  he  should 
possess  the  highest  degree  of  skill  to  qualify  him  to 
testify  as  an  expert.7 

1  Pullman  v.  Corning,  9  N.  Y.  93. 

2  Citizens'  Gas  Light  Co.  v.  O'Brien,  118111.  174, 181. 

3  See  Citizens'  Gas  Light  Co.  v.  O'Brien,  15  Brad.  (111.)  400. 

4  Forgery  v.  First  National  Bank,  66  Ind.  123, 125. 

5  McEwen  v.  Bigelow,  40  Mich.  215,  217. 

6  Heacock  v.  The  State,  13  Texas  Ct.  of  App.  97,  132. 

7  Yates  v.  Yates,  76  N.  C.  142, 149;  Hyde  v.  Woolfolk,  1  Iowa,   159, 
166;  State  v.  Hinkle,  6  Iowa,  159. 166. 


54  EXPERT   TESTIMONY. 

§  22.  The  Competency  of  the  Witness  as  a  Sub- 
ject of  Review  in  an  Appellate  Court. — It  being  a 
question  of  fact  to  be  decided  by  the  trial  judge 
whether  a  witness  offered  as  an  expert  has  the  qual- 
ifications necessary  to  entitle  him  to  testify  in  that 
capacity,  the  question  arises  whether  the  decision 
of  the  matter  by  the  trial  court  can  be  reviewed  in  an 
appellate  court.  The  courts  in  some  instances  appear 
to  have  laid  down  the  principle  unqualifiedly,  that 
the  question  whether  a  witness  possesses  the  neces- 
sary qualifications  of  an  expert  is  a  question  of  fact 
purely  within  the  province  and  discretion  of  the 
trial  judge,  and  that  his  decision  concerning  the 
matter  is  not  subject  to  revision  in  the  appellate 
court.1  But  there  is  not  a  harmony  of  opinion  on 
the  subject.  The  Supreme  Court  of  Indiana  say: 
"Some  of  the  cases  go  very  far  upon  this  point,  for 
some  of  them  hold  that  the  decision  of  the  trial 
court  is  conclusive,  but  we  think  the  cases  which 
hold  that  where  there  is  no  evidence  at  all  tending 
to  prove  that  the  witness  is  qualified  to  testify  as  an 
expert,  or  where  there  is  a  palpable  abuse  of  dis- 
cretion, the  ruling  of  the  trial  court  is  subject  to 
review,  are  supported  by  the  better  reason."  In 
this  expression  of  opinion  we  emphatically  concur. 
In  the  Supreme  Court  of  Maine,  it  is  said:  '  'Whether 
this  witness  was  qualified  to  testify  as  an  expert, 
was  a  question  of  fact  for  the  presiding  judge,  and 
his  decision  of  such  a  question  is  usually  final. 
In  extreme  cases,  where  a  serious  mistake  has  been 

1  Dole  v.  Johnson,  50  N.  H.  452,  459;  Jones  v.  Tucker,  41  N.  H.  546; 
Hammond  v.  Schiff,  100  N.  C.  161;  State  v.  Cole,  94  N.  C.   958,964; 
Flynt  v.  Boldenhamer,  80  N.  C.   205;  Wright  v.   William's  Estate,  47 
Vt.  222,  232. 

2  City  of  Fort  Wayne  v.  Coombs,  107  Ind.  75,  85. 


COMPETENCY    OF     WITNESS.  55 

committed  through  some  accident,  inadvertence,  or 
misconception,  his  action  may  be  reviewed."1  And 
in  Massachusetts  it  has  been  declared  that  the  de- 
cision of  this  question  by  the  trial  court  is  conclu- 
sive "unless  it  appears  upon  the  evidence  to  have  been 
erroneous,  or  to  have  been  founded  upon  some  error 
in  law."  In  the  Supreme  Court  of  the  United 
States,  the  decision  of  the  trial  judge  is  said  to  be 
conclusive  "unless  clearly  shown  to  be  erroneous  in 
matter  of  law. "3  The  Supreme  Court  of  Vermont  while 
declaring  that  the  question  of  competency  is  a  ques- 
tion of  fact,  the  decision  of  which  by  the  trial  court 
"as  an  inference  from  evidence  is  not  revisable," 
add:  "An  arbitrary  ruling  without  evidence  or 
against  conclusive  showing  would  leave  the  question 
of  revisability  the  same  as  it  would  stand  on  sim- 
ilar rulings  on  other  questions  of  fact."4  In  the 
Supreme  Court  of  Pennsylvania  it  is  said  that  the 
matter  rests  '  'very  much  in  the  sound  discretion  of 
the  court,  and  we  never  reverse  in  such  cases  unless 
the  discretion  has  been  grossly  abused."5  There  are 
other  States  in  which  appellate  courts  will  review 
the  trial  court's  decision.6 

layette  v.  Chesterville,  77  Me.  28,33    '1885).    And  see  Higgins  v. 
Downs,  75  Me.  346,  347  (1883) . 

2  Perkins  v.  Stickney,132  Mass.  217,218  (1882) ,  citing  Nunes  v.  Perry, 
113  Mass.  274,  276,  and  Commonwealth  v.  Sturtivant,  117  Mass.  122.  And 
see  Lowell  v.  County  Commissioners,  146  Mass.  403. 

3  StiUwell  Mnfg.  Co.  v.  Phelps,  130  U.  S.  520,  527. 

4Bemis  v.  Railroad   Co.,  58  Vt.  636,  641  (1886).      And  see    Wright 
v.  Williams'  Estate,  47  Vt.  222,  233. 

5  Allen's  Appeal,  99  Pa.  St.  196, 202  (1881).  See  also  Sorg  v.  First  Ger- 
man Congregation,  63  Pa.  St.  156. 

6  See  Citizens'  Gas  Light  Co.v.  O'Brien,  15  Brad.  (1110  400,411;  Hea- 
cock  v.  The  State,  13  Texas  Ct.  of  App.  97,  132.    In  State  v.  Cob,  63 
Iowa,  695, 699.  the  court  say :  "This  matter  of  passing  upon  expert  qual- 
ifications is  not  one  that  is  subject  to  very  well  defined  rules.    There 
must, of  course,  be  some  evidence  of  the  existence  of  the  qualifications; 


56  EXPERT    TESTIMONY. 

It  is  evident  that  it  is  only  in  cases  where  the  trial 
court  has  been  clearly  in  the  wrong  in  passing  on 
the  qualifications  of  a  witness  that  a  case  will  be  re- 
versed for  a  ruling  admitting  one  to  testify  as  an 
expert,  or  declining  to  receive  his  testimony  as  such. 
The  trial  court  has  the  witness  before  it  and  has  an 
opportunity  of  estimating  his  mental  caliber  which 
the  appellate  court  does  not  enjoy,  and  a  personal 
examination  of  the  witness  ordinarily  affords  the 
most  satisfactory  method  of  determining  his  ability 
or  disability  to  testify  in  the  character  of  an  expert.1 
It  is  said  that  if  the  witnesses  offered  had  any  claim 
to  the  character  of  experts  the  appellate  court  will 
not  reverse  on  the  ground  that  the  experience  of  the 
witnesses  was  not  sufficiently  special.2 

Assuming  that  an  appellate  court  has  the  power  to 
review  in  a  proper  case  the  decision  by  the  trial  court 
of  this  question  of  competency  it  will  not  reverse 
the  ruling  of  that  court  unless  such  ruling  was 
against  the  evidence,  or  wholly  or  mainly  with- 
out support  in  the  facts  which  appear.3  In  the  ab- 
sence of  a  contrary  statement  in  the  bill  of  exceptions, 
the  presumption  would  be  that  the  trial  court  was 
satisfied  after  proper  inquiry  as  to  the  competency 
of  the  witness,  and  the  mere  statement  that  an  ob- 
jection was  made  to  the  witness  on  the  ground  that 
he  had  not  been  shown  qualified  to  testify  as  an 

but  beyond  that  it  must  be  left  somewhat  in  the  discretion  of  the  court. 
In  a  criminal  case  of  the  gravity  of  this  one,  the  discretion  must,  to  be 
sure,  be  exercised  cautiously;  and  if  the  appellate  court  should  be  sat- 
isfied that  it  had  not  been  done,  and  should  apprehend  that  the  defend- 
ant had  suffered  injustice,  it  would  doubtless  be  justified  in  reversing." 
And  see  Southern  Life  Ins.  Co.  v.  Wilkinson,  53  Ga.  535;  Wiggins  v. 
Wallace,  19  Barb.  (X.  Y.)  338. 

1  Broquet  v.  Tripp,  36  Kan.  700. 

2  Delaware,  etc.  Steam  Towboat  Co.  v.  Starrs,  69  Pa.  St.  36. 

3  Slocovich  v.  Orient  Hut.  Ins.  Co.,  108  N.  Y.  56,  62,  (1888). 


COMPETENCY    OF     WITNESS.  57 

expert,  would  not  be  sufficient  to  rebut  such  a  pre- 
sumption.1 It  must  be  borne  in  mind  that  a  party 
seeking  to  have  the  decision  of  the  trial  court  re- 
viewed should  show  in  his  bill  of  exceptions,  or  in 
some  proper  manner,  that  no  examination  was  made 
to  test  the  qualification  of  the  witness,  or  if  made 
should  set  forth  the  evidence  that  the  want  of  qual- 
ification may  affirmatively  appear,2  and  the  entire 
evidence  upon  that  point  should  be  incorporated 
in  the  bill  of  exceptions.3  An  appellate  court 
cannot  say  that  it  was  error  to  exclude  the  opinion 
of  a  witness  offered  as  an  expert,  when  the  excep- 
tions fail  to  show  that  the  trial  court  decided  as  a 
preliminary  question  that  the  witness  was  qualified 
as  an  expert/  If  an  exception  is  taken  to  the  ex- 
clusion of  testimony  which  could  only  come  from  an 
expert  it  should  affirmatively  appear  that  the  person 
who  was  asked  for  the  opinion  was  an  expert.5  An 
objection  to  the  decision  of  the  trial  court  on  the 
question  of  the  competency  of  the  witness  must 
have  been  taken  at  the  time  of  the  trial,  as  it  cannot 
be  raised  in  the  first  instance  in  the  court  above.6 

§  23.  How  the  Objection  to  the  Competency  of 
the  Witness  Should  be  Taken. — When  the  opinion 
of  a  witness  is  called  for  before  his  qualifications  to 
testify  as  an  expert  have  been  shown,  counsel,  unless 
they  are  willing  to  waive  the  question  of  the  com- 

1  Hardin  v.  Sparks,  70  Texas,  429,  (1888). 

2  Hardin  v.  Sparks,  70  Texas,  429,  (1888)  ;    Campbell  v.  Russell,  139 
Mass.  278,  (1885). 

3Gossler  v.  Eagle  Sugar  Refinery,  103  Mass.  331,  335;  Quinsigamond 
Bank  v.  Hobbs,  11  Gray,  250,  258;  Marcy  v.  Barnes,  16  Gray,  161;  Sarle 
v.  Arnold,  7  R.  I.  586. 

4  Carpenter  v.  Corinth,  58  Vt.  214,  (1885). 

5  Higgins  v.  Downs,  75  Me.  346,  (1883). 

6  Hand  v.  Brookline,  126  Mass.  324. 


58 


EXPERT   TESTIMONY. 


petency  of  the  witness  or  to  take  their  chance  of 
showing  a  want  of  competency  on  the  cross-exami- 
nation, should  state  the  specific  ground  of  their  ob- 
jection to  the  testimony  of  the  witness,  and  not  con- 
tent themselves  with  a  mere  general  objection.  A 
general  objection  is  of  no  avail  in  such  a  case,  and 
cannot  be  considered  as  applying  to  the  competency 
of  a  witness  to  give  expert  testimony.1  A  general 
objection  failing  to  specify  that  no  proper  founda- 
tion has  been  laid  for  the  admission  of  evidence 
otherwise  competent  is  not  available  as  a  ground  of 
error.2 

§  24.  Competency  as  Dependent  on  Whether  the 
Expert  has  Heard  the  Testimony. — An  expert  either 
states  general  facts,  which  are  the  results  of  scientific 
knowledge  or  general  skill,  or  else  he  testifies  to 
opinions.3  If  he  testifies  to  opinions,  his  testimony 
is  founded  either  on  personal  knowledge  of  the  facts, 
or  else  it  is  based  on  facts  shown  by  the  testimony 
of  others.4  If  his  opinion  is  desired  on  facts  testi- 
fied to  by  other  witnesses,  it  should  appear  that  he 
has  reliable  information  or  knowledge  of  what  those 
facts  are.5  But  even  in  such  cases  it  is  not  always 
necessary  that  the  witness  should  have  been  present, 
and  heard  all  the  evidence.6 

It  is  sufficient  if  it  appears  that  he  has  heard  all 
the  testimony  which  is  material  to  the  subject  of 

1  See  Stevens  v.  Brennan,  79  N.  Y.  255,  259 ;    Amadon  v.  Ingersoll,  34 
Hun  (N.  Y.),  134;  Schwander  v.  Birge,  46  Hun  (ST.  Y.),  66,  68;  Case  v. 
Perew,  46  Hun  (X.  Y.),  57,62. 

2  Cushman  v.  U.  S.  Life  Ins.  Co.,  70  N.  Y.  72,  80. 

3  Emerson  v.  Lowell  Gas  Light  Co.,  6  Allen,  146. 

4  Spear  v.  Richardson,  37  N.  H.  23,34;  Livingston  v.  Commonwealth, 
14  Gratt.  (Va,)  592;  Walker  v.  Fields,  28  Ga.  237. 

5  Heald  v.  Thing,  45  Me.  392;  Lake  v.  People,  12  N.  Y.  358;  s.  c.,  1 
Parker  Cr.  Cas.  495;  People  v.  Thurston,  2  Parker  Cr.  Cas.  49. 

6  Miller  v.  Smith,  112  Mass.  470,  475. 


COMPETENCY    OF    EXPERTS.  59 

inquiry.1  And  he  should  have  heard  the  evidence  as 
actually  given,  and  not  as  it  appears  on  the  minutes 
of  the  testimony  as  taken  by  counsel.  When  an 
expert  had  not  heard  the  evidence  as  given  on  the 
trial,  and  counsel  offered  to  read  to  him  their  min- 
utes of  the  testimony,  it  was  held  that  this  could 
'not  be  allowed.2  Of  course,  the  necessity  for  the 
witness  to  have  heard  the  testimony  does  not  exist 
if  the  ivhole  of  the  evidence  is  embraced  in  a  hypo- 
thetical question  submitted  to  him.3 

§  25.  Competency  of  Experts  in  Particular  Cases. 
— We  have  thus  confined  our  attention  to  the  gen- 
eral principles  relating  to  the  competency  of  experts, 
and  have  left  the  consideration  of  the  competency 
of  experts  in  particular  cases  to  be  considered  in 
subsequent  chapters.  For  instance,  the  competency 
of  physicians  and  surgeons  to  testify  as  experts,  is 
considered  in  the  chapter  relating  to  expert  testimony 
in  medicine,  surgery  and  chemistry,  and  the  qualifi- 
cations of  experts  in  handwriting  in  the  chapter 
relating  to  expert  testimony  in  handwriting. 

1  Carpenter  v.  Blake,  2  Lans.  (N.  Y.)  206;   State  v.  Medicott,  9  Kan. 
289;  Rich  v.  Jones,  9  Gush.  (Mass.)  337;  Hand  v.  Brookline,  126  Mass. 
324;  Davis  v.  State,  38  Md.  15,  40;  State  v.  Hayden,  51  Vt.  296. 

2  Thayer  v.  Davis,  38  Vt.  163. 

3  See  Webb  v.  State,  9  Texas  Ct.  of  App.  490 


60  EXPERT   TESTIMONY. 


CHAPTER  III. 


THE  EXAMINATION  OF  EXPERT  WITNESSES. 

SECTION. 

26.  Mode  of  Examination  of  Expert  Witnesses. 

27.  The  Hypothetical  Question. 

28.  The  Form  of  the  Hypothetical  Question. 

29.  The  Form  of  the  Hypothetical  Question — The  Subject  Continued. 

30.  The  Hypothetical  Question  is  not  to  be  Based  on  the  Opinions  of 

Other  Experts. 

31.  When  Questions  Need  not  be  Hypothetical. 

32.  Instructions  to  the  Jury  Concerning  Testimony  Based  on  Hypo- 

thetical Questions. 

33.  The  Hypothetical  Question  on  the  Cross-Examination. 

34.  Questions  to  Experts  Should  not  Embrace  Questions  of  Law. 

35.  Questions  to  Experts  as  to  Particular  Cases. 

36.  An  Expert  Cannot  be  Asked  for  an  Opinion  on  Facts  not  Stated. 

37.  Other  Matters  Pertaining  to  the  Examination  and  Cross-Examina- 

tion of  Experts. 

38.  General  Rules  Governing  the  Examination  of  Witnesses. ' 

39.  Excluding  Experts  from  the  Court  Room  During  the  Examination 

of  Witnesses. 

40.  Right  of  Court  to  Limit  the  Number  of  Expert  Witnesses. 

41.  By  Whom  Expert  Witnesses  are  Selected. 

§  26.      Mode  of  Examination  of  Expert   Witnesses. 

— It  being  determined  by  the  court,  that  the  sub- 
ject-matter of  inquiry  is  one  upon  which  the  opinion 
of  experts  may  properly  be  received  in  evidence, 
and  that  the  witness  introduced  possesses  special 
skill,  in  the  subject-matter  of  inquiry,  the  examina- 
tion of  the  witness  is  next  in  order,  and  it  becomes 


MODE  OF  EXAMINATION  OF  EXPERT  WITNESSES.        61 

important  that  such  examination  should  proceed 
strictly  in  accordance  with  the  rules  which  it  has 
been  found  necessary  to  establish  in  relation  to  the 
admission  of  expert  testimony.  It  is  necessary  in 
the  examination  of  all  such  witnesses,  that  ques- 
tions should  be  so  framed  as  not  to  call  on  the  wit- 
ness for  a  critical  review  of  the  testimony  given  by 
the  other  witnesses,  compelling  the  expert  to  draw 
inferences  or  conclusions  of  fact  from  the  testimony, 
or  to  pass  on  the  credibility  of  the  witnesses,1  the 
general  rule  being  that  an  expert  should  not  be 
asked  a  question  in  such  a  manner  as  to  cover  the 
very  question  to  be  submitted  to  the  jury.2  As  ex- 
pressed in  one  of  the  opinions,  "a  question  should 
not  be  so  framed  as  to  permit  the  witness  to  roam 
through  the  evidence  for  himself,  and  gather  the 
facts  as  he  may  consider  them  to  be  proved,  and 
then  state  his  conclusions  concerning  them." 

1  Jamesoii  v.  Drinkald,  12  Moore,  148 ;  Guiterman  v.  Liverpool,  etc. 
Steamship  Co.,  83  X.  Y.  358,  366;  United  States  v.  McGloin,  1  Curtis  C. 
C.  1,  9;  Buxton  v.  Somerset  Potters  Works,  121  Mass.  446;  Reynolds  v. 
Robinson,  64  X.  Y.  589;  Phillips  v.  Starr,  26  Iowa,  351;  Van  Zandt  v. 
Mutual  Benefit  Life  Ins.  Co.,  55  X.  Y.  179;  Dexter  v.  Hall,  15  Wall.  9; 
Cincinnati,  etc.  Mutual  Ins.  Co.   v.   May,  20  Ohio,  211,  224;  Rush  v. 
Megee,  36  Ind.  1;  Elliott  v.  Russell,  92  Ind.  526.     "Le  Medicin  ne  doit 
jamais  donner  un  avis  sur  le  difficulte  menie,   que  les  juris  ont  a 
resoudre;  par  exemple,  sur  le  point  de  savoir  si  1'accuse  est  irresponsa- 
ble,  mais  simplement  faire  connaitre  son  opinion  sur  1'existence  ou  le 
degre  d'influence  de  certain  faits.'*    Dr.  Mittermaier's  Traite  de  la 
Procedure  Criminelle. 

2  Chicago  &  Alton  R.  R.  Co.  v.  Springfield  &  Northwestern  R.  R.  Co., 
67  111.   142;  Tingley  v.   Cowgill,  48  Mo.   294;  Muldowney   v.  Illinois 
Central  R.  R.  Co.,  39  Iowa,  615;  Pelamourges  v.  Clark,  9  Iowa,  1,  16; 
Hill  v.  Portland,  etc.  R.  R.  Co.,  55  Me.  444;  Keller  v.  N.  Y.  Central  R. 
R.  Co.,  2  Abbott's  App.  Dec-is.  (N.  Y.)  480,  490;  Clark  v.  Detroit  Loco- 
motive Works,  32  Mich.   348;  State  v.  Cole,  94  X.  C.   958;  Baltimore, 
etc.  Turnpike  Co.  v.   Cassell,  66  Md.  419;  Henry  v.  Hall,  13  111.  App. 
343;  Smith  v.  Hickenbottom,  57  Iowa,  733;  Boor  v.  Lowrejr,  103  Ind. 
480. 

3  Dolz  v.  Morris,  17  X.  Y.  Sup.  Ct.  202. 


62  EXPERT    TESTIMONY. 

And  the  language  in  another  case  is  as  follows: 
''The  questions  to  him  must  be  so  shaped  as  to  give 
him  no  occasion  to  mentally  draw  his  own  conclu- 
sions from  the  whole  evidence,  or  a  part  thereof, 
and  from  the  conclusion  so  drawn,  express  his  opin- 
ion, or  to  decide  as  to  the  weight  of  evidence  or  the 
credibility  of  witnesses;  and  his  answers  must  be 
such  as  not  to  involve  any  such  conclusions  so 
drawn,  or  any  opinion  of  the  expert,  as  to  the  weight 
of  the  evidence  or  the  credibility  of  the  witnesses." 
"The  object  of  all  questions  to  experts,"  says  the 
Supreme  Court  of  Massachusetts,  "should  be  to  ob- 
tain their  opinion  as  to  the  matter  of  skill  or  science 
which  is  in  controversy,  and  at  the  same  time  to 
exclude  their  opinions  as  to  .the  effect  of  the  evi- 
dence in  establishing  controverted  facts.  Questions 
adapted  to  this  end  may  be  in  a  great  variety  of 
forms.  If  they  require  the  witness  to  draw  a  con- 
clusion of  fact,  they  should  be  excluded."  It  is 
not  the  duty  of  an  expert  to  reconcile  conflicting 
evidence.3  In  illustration  of  this  principle,  that  an 
expert  cannot  be  asked  an  opinion  which  requires 
him  to  pass  upon  the  evidence,  the  following  ques- 
tion may  be  cited  as  having  been  held  to  be  an  im- 
proper one,  for  the  reason  that  it  practically  put  the 
expert  in  the  place  of  the  jury:  '  'From  the  facts  and 
circumstances  stated  by  previous  witnesses,  and 
from  those  testified  to  by  still  other  witnesses,  relat- 
ing to  the  homicide,  and  from  defendant's  conduct 
on  the  trial,  is  it  JOUY  opinion  that  the  defendant 


1  McMechen  v.  McMechen,  17  W.  Va.  683,  694;  Kerr  v.  Lunsford,  31 
W.  Va.  659,  672. 

2  Hunt  v.  Lowell  Gas  Light  Co.,  8  Gray,  169. 

3  Luning  v.  State,  1  Chandler  (Wis.),  178. 


MODE  OF  EXAMINATION  OF  EXPERT  WITNESSES.        63 

was  sane  or  insane  when  he  committed  the  act?"1 
And  so  where  the  question  asked  was:  "What  is 
your  opinion  based  upon  the  testimony  adduced  at 
this  trial,  as  to  the  sanity  or  insanity  of  the  defend- 
ant at  or  before  the  time  of  the  alleged  shooting?"  2 
The  truth  of  the  testimony  not  being  admitted,  the 
question  asked  involved  the  determination  of  the 
truth  of  that  testimony  by  the  expert.  It  was 
therefore  improper.  For  the  same  reason  an  engi- 
neer has  not  been  allowed  to  answer  the  question 
whether  ''the  plaintiff  in  oiling  that  pulley  could 
have  been  injured  unless  he  was  careless."  3  So  it 
has  been  held  improper  to  ask:  "In  your  opinion 
as  a  canal  boatman,  did  Mr.  C.  in  any  way  omit  or 
neglect  to  do  anything  which  he  might  have  done 
to  save  his  boat?"  He  could  be  asked  whether  cer- 
tain acts  assumed  to  be  proven  were  seaman-like 
and  proper,  but  he  could  not  be  allowed  to  express 
an  opinion  as  to  what  was  or  was  not  done  as  a 
matter  of  fact/  And  in  an  action  against  a  physi- 
cian for  neglect  and  non-attendance  in  a  case  of 
frost  bite,  it  has  been  held  that  a  medical  witness, 
to  whom  the  evidence  was  read,  could  not  be  asked: 
"From  the  evidence  before  the  court,  to  what  do 
you  ascribe  the  loss  of  the  plaintiffs  fingers  and 
toes?"  A  further  illustration  may  be  found  in  the 
case  cited  below.6 


1  State  v.  Felter,  25  Iowa,  67,  74. 

2  Reed  v.  The  State.  62  Miss.  405;  and  so  in  Bennett  v.  State,  57   Wis. 
69. 

3  Buxton  v.  Somerset  Potters  Works,  124  Mass.  446. 

4  Carpenter  v.  Eastern  Transportation  Co.,  71  X.  Y.  574. 

5  Key  v.  Thompson,  2  Haunay  (X.  B.),  224. 

6  In  State  v.  Bowman,  78  X.  C.  509,  511,  the  following  was  the  form 
of  examination :  -Have  you  heard  the  statements  of  the  witness  as  to 
the  circumstances  immediately  preceding  her  being  taken  sick,  the 


64  EXPERT   TESTIMONY. 

§  27.  The  Hypothetical  Question. — As  ail  expert 
is  not  allowed  to  draw  inferences  or  conclusions  of 
fact  from  the  evidence,  his  opinion  should  be  asked 
upon  a  hypothetical  statement  of  facts.1  Mr.  Chief 
Justice  SHAW  well  stated  the  law  as  follows:  "In 
order  to  obtain  the  opinion  of  a  witness  on  matters 
not  depending  upon  general  knowledge,  but  on  facts 
not  testified  of  by  himself,  one  of  two  modes  is  pur- 
sued: either  the  witness  is  present  and  hears  all  the 
testimony,  or  the  testimony  is  summed  up  in  the 
question  put  to  him;  and  in  either  case  the  question 
is  put  to  him  hypothetically,  whether,  if  certain 


appearance  of  the  body  immediately  after  death,  its  appearance  subse- 
quent and  before  interment,  the  condition  of  her  limbs  and  members, 
the  account  given  by  the  accused  of  her  manner  of  death,  her  asking  to 
have  her  feet  uncrossed,  and  the  manner  in  which  she  gripped  him  and 
her  child,  and  have  you  heard  the  testimony  of  Mr.  Redd  as  to  his 
analysis  and  its  results,  and  from  them  can  you  as  a  physician  form  an 
opinion  as  to  this  cause  of  her  death?" 

"The  witness  answered  'Yes.'  " 

"In  giving  answer,  do  you  exclude  from  your  consideration  the  evi- 
dence of  other  circumstances  in  the  nature  of  moral  evidence  in  the 
case?" 

"The  witness  answered  'I  do.'  '• 

"What  in  yonr  opinion  was  the  cause  of  her  death?" 

"The  witness  answered,  'I  believe  it  was  strychnine.'  " 

The  supreme  court  held  that  this  evidence  should  not  have  been  re- 
ceived, as  it  put  the  expert  in  the  place  of  the  jury,  and  required  him 
to  pass  on  the  evidence. 

1  Strong  v.  Kean,13  Irish  Law  R.  93;  Polk  v.  State,  36  Ark.  117,  124, 
125;  Spear  v.  Richardson,  37  X,  H.  23;  Teft  v.  Wilcox,  6  Kan.  46; 
Pidcock  v.  Potter,  68  Pa.  St.  342 ;  Woodbury  v.  Obear,  7  Gray  (Mass.) , 
467:  Williams  v.  Brown,  28  Ohio  St.  547,  551;  Moore  v.  State,  17  Ohio 
St.  526;  Jerry  v.  Townshend,  9Md.  145;  Baltimore  &  Ohio  Railroad  Co. 
v.  Thompson,  10  Md.  76;  Walker  v.  Rogers.  24  Md.  237;  Page  v.  State, 
61  Ala.  16;  Willey  v.  Portsmouth,  35  X.  H.  303;  Bishop  v.  Spining,  38 
Ind.  143;  Dexter  v.  Hall,  15  Wall.  9;  Ayers  v.  Water  Commissioners, 
29  X.  Y.  Sup.  Ct.  297;  Guiterman  v.  Liverpool,  etc.  Steamship  Co.,  S3 
X.  Y.  358,  366;  Hunt  v.  State,  9  Tex.  Ct.  of  App.  166;  Hoard  v.  Peck,  56 
Barb.  (X .  Y.)  202;  City  of  Decatur  v.  Fisher,  63  111.  241;  Phillips  v. 
Starr,  26  Iowa,  349. 


THE    HYPOTHETICAL    QUESTION.  65 

facts  testified   of  are  true  he  can  form  an  opinion, 
and  what  that  opinion  is."1 

Counsel,  in  framing  the  hypothetical  question, 
may  base  it  upon  the  hypothesis  of  the  truth  of  all 
the  evidence,  or  on  an  hypothesis  especially  framed 
on  certain  facts  assumed  to  be  proved  for  the  pur- 
pose of  the  inquiry.2  The 'question  is  not  improper 
simply  because  it  includes  only  a  part  of  the  facts 
in  evidence.3  And  if  framed  on  the  assumption  of 
certain  facts,  counsel  may  assume  the  facts  in  ac- 
cordance with  his  theory  of  them,  it  not  being 
essential  that  he  should  state  the  facts  as  they  actu- 
ally exist.* 

"The  claim  is,"  says  Chief  Justice  FOLGER,  "that 
a  hypothetical  question  may  not  be  put  to  an  ex- 
pert, unless  it  states  the  facts  as  they  exist.  It  is 
manifest,  if  this  is  the  rule,  that  in  a  trial  where 
there  is  a  dispute  as  to  the  facts,  which  can  be  set- 
tled only  by  the  jury,  there  would  be  no  room  for  a 
hypothetical  question.  The  very  meaning  of  the 
word  is  that  it  supposes,  assumes  something  for  the 
time  being.  Each  side,  in  an  issue  of  fact,  has  its 
theory  of  wThat  is  the  true  state  of  the  facts,  and 
assumes  that  it  can  prove  it  to  be  so  to  the  satisfac- 
tion of  the  jury,  and  so  assuming,  shapes  hypothet- 
ical questions  to  experts  accordingly.  And  such  is 
the  correct  practice."5  It  is,  therefore,  the  privi- 
lege of  counsel  to  assume  any  state  of  facts  which 

1  Dickenson  v.  Fitchburg,  13  Gray  (Mass.),  546,  556. 

2  Gotlieb  v.  Hartman,  3  Colo.  53;  Williams  v.  State,  64  Md.  384. 

3  Stearns  v.  Field,  90  X.  Y.  640;  Turnbull  v.  Richardson,  69  Mich.  413. 

4  Cowley  v.  People,  83  X.  Y.  464;  Dillebar  v.  Home  Life  Ins.  Co.,  87 
X.  Y.  79;  Lovelady  v.  State,  14  Tex.  Ct.  of  App.  345;  Quinn  v.  Higgins, 
63  Wis.  664;  Kerr  v.  Lunsford,  31  W.  Va.  660. 

5  Cowley  v.  People,  83  X.  Y.  464.    And  see  to  the  same  effect  Davis 

(5) 


66  EXPERT   TESTIMONY. 

there  is  any  evidence  tending  to  prove,  and  to  have 
the  opinion  of  the  expert  based  on  the  facts  as- 
sumed.1 The  fact  that  counsel  make  an  error  in 
their  assumption,  does  not  render  the  question  ob- 
jectionable, if  it  is  within  the  possible  or  probable 
range  of  the  evidence.2  But  the  testimony  should 
tend  to  establish  the  facts  embraced  in  the  question.3 
A  court,  however,  has  no  right  to  reject  a  question 
which  counsel  claims  embraces  facts  which  the  evi- 
dence tends  to  prove,  simply  because  in  its  opinion 
the  facts  assumed  are  not  established  by  a  pre- 
ponderance of  the  evidence.  The  question  should 
be  allowed  if  there  is  any  evidence  tending  to  prove 
the  facts  assumed.  For  what  facts  are  proved  in  a 
case,  when  there  is  any  evidence  tending  to  prove 
them,  is  a  matter  for  the  jury  and  not  for  the  court.* 
But  if  the  hypothetical  question  is  clearly  exagger- 


v.  State,  35  Ind.  496;  Guetig  v.  State,  66  Ind.  94;  Filer  v.  N.  Y.  Central 
B.  R.  Co.,  49  X.  Y.  42;  Carpenter  v.  Blake,  2  Lang.  (N.  Y.)  206. 

1  Peterson  v.  Chicago,  etc.  R.  R.  Co.,  38  Minn.  511;  Stearns  v.  Field, 
90  N.  Y.  640;  Quinn  v.  Higgins,  63  Wis.  664;  Leache  v.  State,  22  Tex. 
Ct.  of  App.  279;  Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104  Ind.  409,  412; 
Goodwin  v.  The  State,  96  Ind.  550,  555;  Conway  v.  The  State,  11 8' Ind. 
490;  Kerr  v.  Lunsford,  31   W.  Va.  659,672;  People  v.  Goldenson,  76 
Cal.  328. 

2  Harnett  v.  Garvey,  66  N.  Y.  641 ;  Nave  v.  Tucker,  70  Ind.  15;  Stearns 
Y.  Field,  90  N.  Y.  640. 

8  Bomgardner  v.  Andrews,  55  Iowa,  638 ;  Hathaway's  Admr.  v.  National 
Life  Ins.  Co.,  48  Vt.  335;  Hurst  v.  The  C.  R.  I.  &  P.  R.  Co.,  49  Iowa, 
76;  Gueting  v.  State,  66  Ind.  94;  Daniells  v.  Aldrich,  42  Mich.  58;  Dil- 
lebar  v.  Home  Life  Ins.  Co.,  87  N.  Y.  79;  State  v.  Cross,  68  Iowa,  180; 
In  re  Will  of  Norman,  72  Iowa,  84;  Ballard  v.  Nebraska,  19  Neb.  609; 
State  v.  Hanley,  34  Minn.  430;  People  v.  Angsbury,  97  N.  Y.  501 ;  State  v. 
Anderson,  10  Oreg.  448;  Meeker  v.  Meeker,  74  Iowa,  352;  'Woolner  v. 
Spalding,  65  Miss.  204;  Bomgardner  v.  Andrews,  55  Ind.  638;  Bathrick 
v.  Detroit  Post  and  Tribune  Co.,  50  Mich.  643;  People  v.  Millard,  53 
Mich.  64;  O'Hara  v.  Wells,  14  Neb.  403;  Morrill  v.  Tegarden,  19  Neb 
534;  In  re  Will  of  Ames,  51  Iowa,  596. 

4  Quinn  v.  Higgins,  63  Wis.  664;  Louisville,  etc.  R.  R.  Co.  v.  Falvey 
104  Ind.  409, 413. 


THE    HYPOTHETICAL    QUESTION.  67 

ated  and  unwarranted  by  any  testimony  in  the  case, 
an  objection  to  it  will  be  sustained.1  To  allow  on 
the  direct  examination  an  hypothetical  question  to 
be  put  which  assumes  a  state  of  facts  not  warranted 
by  the  testimony  is  error,2  and  counsel  will  never 
be  permitted  on  the  direct  examination  to  embrace 
in  an  hypothetical  question  anything  which  the 
testimony  does  not  either  prove  or  tend  to  prove.* 
For  instance,  in  a  case  involving  the  value  to  the 
plaintiff  of  a  contract  which  the  defendant  had 
broken,  an  hypothetical  question  to  an  expert  which 
did  not  accurately  state  the  terms  of  the  contract 
would  be  inadmissible.*  A  question  based  on  an 
assumption  which  the  evidence  neither  proves  nor 
tends  to  prove  is  misleading.  But  to  lay  the 
foundation  for  exceptions  on  the  ground  that  the 
hypothetical  question  embraces  facts  not  in  evi- 
dence, the  attention  of  the  trial  judge  should  be 
called  to  the  specific  objection,  in  order  that  he  may 
determine,  as  he  must  in  the  first  instance,  whether 
there  is  sufficient  evidence  tending  to  prove  the 
facts  stated  to  authorize  the  question.5  For  the 
rule  is  a  general  one,  that  objections  to  testimony 
should  be  specifically  stated  to  the  trial  court,  and 
that  only  such  objections  as  are  so  stated  can  be 
considered  on  appeal.6  When  the  hypothetical 

1  Williams  v.  Brown,  28  Ohio  St.  547,  551,  552;  Muldowney  v.  Illinois 
Central  R.  R.  Co.,  39  Iowa,  615;  Dickie  v.  Vau  Bleck,  5  Redf.  (N.  Y.) 
284,  294;  Haish  v.  Payson,  107111.  365,  where  the  hypothetical  question 
covers  two  pages  and  a  half  and  was  condemned  as  assuming  facts  not 
within  the  range  of  legitimate  evidence.    Woolner  v.  Spalding,  65  Miss. 
204. 

2  Reber  v.  Hening,  115  Pa.  St.  599;  People  v.  Hall,  48  Mich.  482,  489. 

3  Eraser  v.  Jennison,  42  Mich.  206,  227. 

4  Jewett  v.  Brooks,  134  Mass.  505. 

5  Powers  v.  Mitchell,  77  Me.  361. 

6  Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104  Ind.  409,  415. 


68  EXPERT   TESTIMONY. 

question  has  been  improperly  allowed,  because  not 
including  certain  facts  which  should  have  been  em- 
braced in  it,  the  error  is  cured  if  the  cross-examina- 
tion has  supplied  the  omission  and  placed  before 
the  witness  all  the  facts  necessary  to  the  formation 
of  an  opinion.1 

We  have  stated  the  rule  to  be  that  counsel  in 
framing  the  hypothetical  question  can  assume  any 
state  of  facts  which  there  is  any  evidence  tending  to 
prove,  but  that  it  is  error  on  the  direct  examination 
to  allow  a  hypothetical  question  to  be  put  which 
assumes  a  state  of  facts  not  warranted  by  the  testi- 
mony. We  would  not,  however,  be  understood  as 
saying  that  a  question  should  not  be  allowed  which 
assumes  facts  which  the  testimony  already  in  the 
case  neither  proves  nor  tends  to  prove,  provided 
counsel  in  putting  the  question  declare  that  they 
will  by  subsequent  testimony  supply  the  necessary 
evidence  to  warrant  the  facts  so  assumed.2  When 
this  course  is  pursued  if  such  testimony  is  not 
afterwards  given  it  would  be  the  duty  of  the  court 
to  strike  out  the  answer  to  the  question. 

§  28.  The  Form  of  the  Hypothetical  Question. — 
The  doctrine  as  to  the  proper  form  of  the  hypothet- 
ical question,  has  been  set  forth  by  the  Supreme 
Court  of  Vermont  in  an  opinion,  from  which  we 
quote  as  follows:  "A  study  of  the  various  cases  will 
show  that  the  form  of  the  question  is  modified  and 
shaped  by  the  courts;  whether  it  states  facts,  or 
puts  facts  hypothetically,  or  refers  to  the  testimony 
of  witnesses  as  being  true,  so  as  to  give  the  witness 
no  occasion  or  opportunity  to  decide  upon  the  evi- 

1  Van  Hoesen  v.  Cameron,  54  Mich.  609. 

2  People  v.  Sessions,  58  Mich.  594,   599;  Turnbull  v.  Richardson,  69 
Mich.  400,  413. 


FORM    OF    THE    HYPOTHETICAL    QUESTION.  69 

dence,  or  mingle  his  own  opinion  of  the  facts,  as 
shown  by  the  evidence,  with  the  facts  upon  which 
he  is  to  express  a  professional  opinion.  This  is  the 
important  point,  and  to  secure  this  various  forms 
of  inquiry  have  been  adopted.  Hypothetical  ques- 
tions may  be  so  put  as  to  require  the  witness  to  de- 
cide upon  the  evidence,  to  determine  which  side 
preponderates,  and  to  find  conclusions  from  the 
evidence,  in  order  to  reconcile  conflicting  facts. 
Such  questions,  though  hypothetical,  are  as  clearly 
improper  as  if  they  directly  sought  the  opinion  of 
the  witness  on  the  merits  of  the  case.  Hence,  in 
framing  such  questions,  care  should  be  taken  not  to 
involve  so  much,  or  so  many  facts  in  them,  that  the 
witness  will  be  obliged  in  his  own  mind  to  settle  other 
disputed  facts,  in  order  to  give  his  answer.  *  *  In 
some  cases,  all  the  facts  bearing  on  the  issue  might 
be  summed  up  in  a  single  question.  But  when 
facts  on  one  side  conflict  with  facts  on  the  other, 
they  ought  not  to  be  incorporated  into  one  question, 
but  the  attention  of  the  witness  should  be  called  to 
their  opposing  tendencies,  and  if  his  skill  or  knowl- 
edge can  furnish  the  explanation  which  harmonizes 
them,  he  is  at  liberty  to  state  it.  Then  the  jury 
can  know  all  the  facts  and  grounds  on  which  the 
opinion  is  based."  '  The  length  of  a  hypothetical 
statement  made  to  a  witness  must  be  left  in  a  great 
degree  to  the  court's  discretion,  its  length  neces- 
sarily depending  on  the  simple  or  complicated  char- 
acter of  the  transactions  recited,  and  the  number  of 
particulars  which  must  be  considered  for  the  forma- 
tion of  the  opinion  desired.2 

1  Fail-child  v.  Bascotub,  35  Vt.  415. 
2Forsythe  v.  Doolittle,  120  U.  S.  73,  78  (1886). 


70  EXPERT    TESTIMONY. 

It  is  important  in  any  case  that  the  jury  should 
distinctly  understand  what  are  the  exact  facts  upon 
which  the  expert  bases  his  opinion,  for  the  value  of 
that  opinion  depends  upon  whether  or  not  it  is 
based  on  false  assumptions  or  on  existing  facts. 
Where  the  evidence  is  at  all  voluminous,  and  where 
it  is  not  entirely  harmonious,  it  is  improper  to  per- 
mit a  question  to  be  put  which  requires  the  expert 
to  give  an  opinion  upon  his  memory  of  what  the 
evidence  was,  and  upon  his  conclusions  as  to  what 
the  evidence  proved.1  For  this  reason  it  has  been 
held  error  to  permit  an  expert  witness  to  answer 
this  question:  "What,  in  your  opinion,  would  all 
the  facts  as  sworn  to  by  the  several  witnesses,  if 
true,  indicate  as  to  the  mental  condition  of  the 
prisoner  at  the  time  of  the  commission  of  the  of- 
fense?" The  objections  to  the  question  are  that 
the  witness  may  understand  the  evidence  to  be 
radically  different  from  wrhat  the  jurors  hearing  the 
testimony  understand  it,  and  that  it  asks  for  an 
opinion  based  on  the  memory  of  the  witness  as  to 
what  the  evidence  was,  and  upon  his  conclusions  as 
to  what  the  evidence  established.  It  has,  however, 
been  held  proper  to  ask  an  expert  who  had  heard 
the  evidence  of  a  single  witness  his  opinion  "sup- 
posing the  testimony  of  the  witness  to  be  truthful," 
it  not  appearing  that  there  had  been  anything  in 
the  testimony  of  the  witness  which  was  contradictory, 
or  from  which  different  inferences  might  properly 
be  drawn.3  And  in  a  case  in  New  York,  where 


1  Hagadorn   v.  Conn.  Mut.  Life  Ins.  Co.,  22  Hun  (N.  Y.),  249,  252 
(1880). 

2  Bennett  v.  State,  57  Wis.  69  (1883). 
8  Wright  v.  Hardy,  22  Wis.  34b. 


FORM    OF    THE    HYPOTHETICAL    QUESTION.  71 

there  was  a  single  definite  statement  by  a  witness 
of  services  performed,  the  Court  of  Appeals  sustained 
a  question  which  in  substance  was:  "Assuming 
that  the  services  rendered  were  as  described  by 
plaintiff,  what  were  they  worth?"  l  Even  in  cases 
where  more  than  one  witness  has  testified,  if  there 
is  no  conflict  in  the  evidence,  and  if  the  testimony 
is  not  voluminous,  a  court  may  in  its  discretion  al- 
low the  counsel  to  put  the  question  in  the  above 
form  without  any  recapitulation  of  the  evidence.2 
But  courts  should  exercise  caution  in  allowing 
questions  to  be  thus  put  to  the  witness.  To  prop- 
erly form  an  opinion  the  witness  should  have  full 
information  as  to  the  ascertained  or  supposed  state 
of  facts  upon  which  his  opinion  is  based,  and  ordi- 
narily should  not  be  left  to  form  an  opinion  on  such 
facts  as  he  can  recollect.3  And  the  jury  to  properly 
estimate  his  opinion  should  have  the  means  of 
knowing  exactly  on  what  his  opinion  is  based.  The 
jury  should  know  on  what  basis  of  actual  evidence 
on  the  facts  shown  by  the  witnesses  who  were  not 
experts,  the  experts  themselves  testified.4 

1  McCollum  v.  Seward,  62  N.  Y.  316.    See  the  explanation  of  this  case 
in  Hagadorn  v.  Conn.  Mut.  Life  Ins.  Co.,  22  Hun  (N.  Y.),  249,  252. 

2  State  v.  Lautenschlager.  22  Minn.  521;  Getchell  v.  Hill,  21  Minn. 
464;  Storer's  Will,  28  Minn.  9  (1881).    In  a  case  in  North  Carolina  the 
following  was  sustained  :  '-If  the  jury  find  the  symptoms  were  as  testified 
to  by  Dr.  Arnold  and  A.  M.  Wicker,  and  the  conditions  of  the  body  after 
death,  as  described  by  Mrs.  Annie  McGilvary  and  Mr.  Evander  McGil- 
vary"  (both  of  whom  had  given  evidence  on  the  points,  "and  if  the  jury 
should  also  find  that  strychnia  was  found  in  the  stomach  of  deceased 
after  death,  as  testified  by  the  chemist,  Dr.  Hinsdale,  can  you  say  what 
produced  the  death?"    State  v.  Cole,  94  X.  C.  958   (1886).    And  see 
Gates  v.  Fleischer,  67  Wis.  504. 

3  Guiterman  v.  Liverpool,  etc.  Steamship  Co.,  83  N.  Y.  358,  365  (1881)  ; 
Hagadorn    v.    Conn.    Mut.    Life   Ins.  Co.,   22    Hun,    251;    Elliott    v. 
Russell,   92  Ind.   526,530  (1883);  Burns  v.   Barenfield,  84  Ind.   43,48 
(1882)  ;  Craig  v.  Xoblesville,  etc.  R.  R.  Co.,  98  Ind.  109. 

4  People  v.  Millard,  53  Mich.  63,  75. 


72  EXPERT    TESTIMONY. 

§  29.      The  Form    of  the    Hypothetical    Question — 

The  Subject  Continued. — It  is  not  always  necessary 
that  a  hypothetical  question  should  be  asked  in  a 
formal  manner.  Where  a  medical  expert  had  read 
the  deposition  of  the  plaintiff,  detailing  minutely 
the  injuries  and  bodily  condition  claimed  to  have 
resulted  to  him  from- an  injury  which  he  related,  it 
was  held  proper  to  ask  him  "from  the  knowledge 
gained  by  reading  the  deposition,"  his  opinion  as 
to  the  plaintiff's  condition  at  the  time  the  deposition 
was  made,  and  as  to  the  cause  of  that  condition. 
The  court  said  that  where  an  expert  heard  or  read 
the  evidence,  there  was  no  reason  why  he  might 
not  form  as  correct  a  judgment  based  upon  such 
evidence,  assuming  it  to  be  true,  as  if  the  same  evi- 
dence had  been  submitted  to  him  in  the  form  of 
hypothetical  questions,  and  that  it  would  be  an  idle 
and  useless  ceremony  to  require  evidence  with 
which  he  was  already  familiar  to  be  repeated  to 
him  in  that  form.1 

We  have  elsewhere  said  that  it  is  the  privilege  of 
counsel  to  assume  any  state  of  facts  which  there  is 
any  evidence  tending  to  prove,  and  that  the  hypo- 
thetical question  need  not  embrace  all  the  facts  * 
While  this  is  true  in  every  case  where  there 
is  a  conflict  in  the  evidence,  yet  some  of  the 
cases  hold  that  if  there  is  no  dispute  as  to  the 
facts  on  which  the  expert's  opinion  is  desired,  it 
is  proper  to  require  that  the  question  to  the  ex- 
pert shall  embrace  all  the  facts,  and  that  the  witness 
shall  take  them  all  into  consideration  in  expressing 
his  opinion.3  And  in  a  case  in  Texas,  where  the 

1  Gilnian  v.  Town  of  Strafford,  50  Vt.  726. 

2  See  section  27. 

3  Davis  v.  The  Slate,  35  Ind.  496. 


FORM    OF    THE    HYPOTHETICAL    QUESTION.  73 

opinion  of  an  expert  was  asked  on  the  testimony  of 
one  of  the  witnesses,  the  Court  of  Appeals  declared 
that  an  opinion  could  not  be  predicated  on  anything 
less  than  the  entire  testimony,  whether  actually  or 
hypothetically  presented.1  So  it  has  been  said 
that  the  advantage  of  the  usual  hypothetical  ques- 
tion, including  the  substance  of  the  whole  testimony, 
is  so  great,  that  it  should  only  be  sacrificed  when 
the  circumstances  of  the  case  plainly  call  for  it.2 
The  hypothesis  should  be  clearly  stated,  so  that  the 
jury  may  know  with  certainty  upon  precisely  what 
state  of  facts  the  expert  bases  his  opinion.3  We  give 
in  the  note  below  an  illustration  of  the  hypothetical 
question,  the  question  being  the  one  propounded  by 
the  defense  to  the  experts  in  the  trial  of  Guiteau,4 
that  propounded  by  the  prosecution  in  the  same 
case  being  of  too  great  length  to  permit  of  its  re- 
production in  these  pages. 

1  Webb  v.  State,  9  Texas  Ct.  of  App.  490. 

2  Haggerty  v.  Brooklyn,  etc.  R.  R.  Co.,  61  N.  Y.  624. 

3  McMechen  v.  McMechen,  17  W.  Va.  683,  698. 

4  Q.  Assuming  it  to  be  a  fact  that  there  was  a  strong  hereditary  taint 
of  insanity  in  the  blood  of  the  prisoner  at  the  bar;  also  that  at  about  the 
age  of  thirty-five  years  his  own  mind  was  so  much  deranged  that  he 
was  a  fit  subject  to  be  sent  to  an  insane  asylum;  also  that  at  different 
times  after  that  date,  during  the  next  succeeding  five  years,  he  mani- 
fested such  decided  symptoms  of  insanity,  without  simulation,  that  many 
different  persons  conversing  with  him,  and  observing  his  conduct,  be- 
lieved him  to  be  insane;  also  that  in  or  about  the  month  of  June,  1881, 
at  or  about  the  expiration  of  said  term  of  five  years,  he  became  demented 
by  the  idea  that  he  was  inspired  of  God  to  remove  by  death  the  Presi- 
dent of  the  United  States;  also  that  he  acted  on  what  he  believed  to  be 
such  inspiration,  and  as  he  believed  to  be  in  accordance  with  the  Divine 
•will  in  the  preparation  for,  and  in  the  accomplishment  of  such  a  pur- 
pose; also  that  he  committed  the  act  of  shooting  the  President  under 
what  he  believed  to  be  a  Divine  command  which  be  was  not  at  liberty 
to  disobey,  and  which  belief  made  out  a  conviction  which  controlled  his 
conscience  and  overpowered  his  will  as  to  that  act,  so  that  he  could  not 
resist  the  mental  pressure  upon  him ;  also  that  immediately  after  the 
shooting  he  appeared  calm  and  as  if  relieved  by  the  performanace  of  a 


74  EXPERT    TESTIMONY. 

§  30.  The  Hypothetical  Question  is  not  to  he 
Based  on  the  Opinions  of  other  Experts. — It  seems 
that  it  is  not  proper  in  asking  hypothetical  questions 
to  incorporate  in  them  the  opinions  of  other  expert 
witnesses.  An  opinion  must  rest  on  fact,  and  can- 
not rest  in  whole  or  in  part  upon  other  opinions. 
This  question  was  recently  raised  in  the  Supreme 
Court  of  Indiana,  and  the  court  laid  down  the  law 
as  above  stated.  It  said:  "An  opinion  of  an  expert 
witness  cannot  be  based  upon  opinions  expressed  by 
other  experts.  Facts,  and  not  opinions,  must  be 
assumed  in  the  questions.  If  it  were  otherwise, 
opinions  might  be  built  upon  opinions  of  experts 
and  the  substantial  facts  driven  out  of  the  case."  l 
And  in  a  case  recently  decided  in  Maryland,  that 
court  said:  "NoAv,  while  an  expert  may  give  his 
opinion  upon  facts  assumed  to  have  been  estab- 
lished, it  would  be  against  every  rule  and  principle 
of  evidence  to  allow  him  to  state  his  opinion  upon 
the  conclusions  and  inferences  of  other  witnesses." 

§  31.  When  Questions  Need  not  he  Hypothetical. 
— There  are  exceptions  to  the  general  rule  requiring 
that  on  the  direct  examination  the  opinions  of  ex- 
perts should  be  asked  upon  an  assumed  state  of 
facts. 

First.  A  distinction  is  taken,  as  already  pointed 
out,  between  cases  in  which  there  is  a  conflict  of 
evidence  upon  the  material  facts  and  those  in 
which  no  such  conflict  exists.  In  the  former  class 

great  duty;  also  that  there  was  no  other  adequate  motive  for  the  act 
than  the  conviction  that  he  was  executing  the  Divine  will  for  the  good 
of  his  country — assuming  all  of  these  propositions  to  be  true,  state 
whether,  in  your  opinion,  the  prisoner  was  sane  or  insane  at  the  time 
of  shooting  President  Garfield? 

1  Louisville,  etc.,  R.  R.  Co.  v.  Falvey,  104  Ind.  409,  421  (1885). 

2  Williams  v.  The  State,  64  Md.  384,  394  (1885). 


\VHKX    NEED  NOT    BE    HYPOTHETICAL.  75 

of  cases  the  question  must  be  framed  hypothet- 
ically,  but  in  the  latter  class  there  is  no  such 
necessity.1 

Second.  It  is  not  necessary  to  assume  a  state  of 
facts  in  those  cases  in  which  the  expert  is  personally 
acquainted  with  the  material  facts  in  the  case.2 

For  instance,  a  medical  witness  who  has  no  per- 
sonal knowledge  of  the  prisoner  cannot  be  asked: 
"From  the  facts  and  circumstances  stated  by  pre- 
vious witnesses,  and  from  those  testified  to  by  still 
other  witnesses,  relating  to  the  homicide,  and  from 
defendant's  conduct  on  the  trial,  is  it  your  opinion 
that  the  defendant  was  sane  or  insane  when  he  com- 
mitted the  act?  But  if  a  physician 
visits  a  person,  and  from  actual  examination  or  ob- 
servation becomes  accquainted  with  his  mental  con- 
dition, he  may  give  an  opinion  respecting  such 
mental  condition  at  that  time — that  is,  he  may, 
under  such  circumstances,  state  to  the  jury  his 
opinion  as  to  the  sanity  or  insanity  of  the  person 
at  the  time  when  he  thus  observed  or  examined 
him."  So,  where  a  medical  expert  had  made  a 
personal  examination  of  the  uterus  of  a  deceased 
woman,  it  was  proper  to  ask  him,  ''What,  in  your 
opinion,  caused  the  death  of  the  person  from  whom 

1  See  section  29,  and  Cincinnati,  etc.  Mut.  Ins.  Co.  v.  May,  20  Ohio, 
211,  224;  Tefft  v.  Wilcox,  6  Kan.  46;  Page  v.  State,  61  Ala.  16;  Wood- 
bury  v.  Obear,  7  Gray,  467;  Pidcock  v.  Potter,  68  Pa.  St.  342;  Bisbop  v- 
Spining,  38  Ind.  143;  Guiterman  v.  Liverpool,  etc.  Steamship  Co.,  83 
X.   Y.  358,366;  State  v.  Klinger,  46  Mo.   224;    Carpenter  v.  Blake,  2 
Lans.  (X.  Y.)  206;  Coyle  v.  Commonwealth,  104  Pa.  St.  117;  Henrjr  v. 
Hall,  13  111.  App.  343. 

2  Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  337;  Trans- 
portation Line  v.  Hope,  95  U.S.  297,298;  Brown  v.  Huffard,  69  Mo. 
305;  Ayresv.  Water  Commissioners,  29  X.  Y.  Sup.  Ct.  297;  Bellinger  v. 
X.  Y.  Cent.  R.  R.  Co.,  23  X.  Y.  42,  46;  Dunham's  Appeal,  27  Conn.  193. 

3  State  v.  Felter,  25  Iowa,  67,  74,  75,  per  Dillon,  C.  J. 


76  EXPERT    TESTIMONY. 

the  uterus  was  taken?"  And  an  expert  having 
personal  knowledge  of  the  facts  has  been  permitted 
to  testify  that  a  machine  was  constructed  in  a  work- 
manlike manner;2  that  a  wall  was  properly  and 
compactly  constructed;3  that  the  abutments  of  a 
bridge  were  properly  and  skillfully  placed,  and  suf- 
ficient to  discharge  water  in  time  of  flood;4  that  an 
article  was  properly  stowed  in  a  vessel.5 

In  relation  to  this  subject  we  cannot  do  better 
than  quote  from  the  opinion  of  Lord  Chief  Justice 
TINDAL,  delivered  in  the  House  of  Lords,  in  the 
celebrated  NcNaghten  case:  "The  question  lastly 
proposed  by  your  Lordships  is:  'Can  a  medical  man 
conversant  with  the  disease  of  insanity,  who  never 
saw  the  prisoner  previous  to  the  trial,  but  who  was 
present  during  the  whole  trial  and  the  examination 
of  all  the  witnesses,  be  asked  his  opinion  as  to  the 
state  of  the  prisoner's  mind  at  the  time  of  the  com- 
mission of  the  alleged  crime,  or  his  opinion  whether 
the  prisoner  was  conscious  at  the  time  of  doing  the 
act  that  he  was  acting  contrary  to  law,  or  whether 
he  was  laboring  under  any  and  what  delusion  at  the 
time?'  In  answer  thereto,  we  state  to  your  Lord- 
ships, that  we  think  the  medical  man,  under  the 
circumstances  supposed,  cannot  in  strictness  be 
asked  his  opinion  in  the  terms  above  stated,  because 
each  of  those  questions  involves  the  determination 
of  the  truth  of  the  facts  deposed  to,  which  it  is  for 
the  jury  to  decide,  and  the  questions  are  not  mere 


1  State  v.  Glass,  5  Oreg.  73. 

2  Curtis  v.  Gano,  26  X.  Y.  426. 

3  Pullman  v.  Corning,  9  X.  Y.  93. 

4  Conhocton  Stone  Road  Co.  v.  Buffalo,  X.  Y.  &  Erie  R.  R.  Co.,  10  X. 
Y.  523. 

5  Price  v.  Powell,  3  X.  Y.  322. 


INSTRUCTIONS    TO    THE   JURY.  77 

questions  upon  a  matter  of  science,  in  which  case 
such  evidence  is  admissible.  But  where  the  facts 
are  admitted  or  not  disputed,  and  the  question  be- 
comes substantially  one  of  science  only,  it  may  be 
convenient  to  allow  the  question  to  be  put  in  that 
general  form,  though  the  same  cannot  be  insisted 
on  as  a  matter  of  right." 

It  may  be  remarked  as  well  in  this  connection  as 
any  other,  that  answers  to  hypothetical  questions 
are  not  objectionable  because  they  include  consid- 
erations not  referred  to  in  the  questions,  as  consti- 
tuting the  basis  of  the  opinion  given,  and  such  as 
the  testimony  tends  to  prove,  and  as  might  properly 
have  been  included  in  the  questions.2 

§  32.  Instructions  to  the  Jury  Concerning  Testi- 
mony Based  on  Hypothetical  Questions. — But  an 

hypothetical  question  may  have  been  asked  and 
answered  which  it  afterwards  appears  should  have 
been  excluded.  In  such  cases,  the  court  should 
properly  instruct  the  jury  concerning  the  same. 
The  question  put  to  an  expert  maybe  objectionable, 
either  because  it  includes  too  much  or  because  it 
includes  too  little.  In  either  case  it  would  seem 
proper  that  the  jury  should  be  instructed  to  disre- 
gard the  opinion  based  on  it.3  It  is  proper 
to  instruct  the  jury  to  disregard  the  opinions 
of  expert  witnesses,  based  on  hypothetical  state- 
ments of  fact,  in  case  they  find  the  hypothesis 
not  in  accordance  with  the  facts.4  But  the 

1 10  01.  &  Fin.  200,  211. 

2  Hathaway's  Adnir.  v.  National  Life  Ins.  Co.,  48  Vt.  335. 

3  Commonwealth  v.  Mullins,  2  Allen  (Mass.),  296;  Gueting  v.  State, 
66  Ind.  94;  Hovey  v.  Chase,  52  Me.  304;  People  v.  Sessions,  58  Mich. 
594,  599. 

4Loucks  v.  Chicago,  etc.  R.  R.  Co.,  31  Minn.  526;  Foreyth  v.  Doo- 
little,  120  U.  S.  73,  77  (1886). 


78  EXPERT    TESTIMONY. 

court  should  be  careful  not  to  assume  the  province 
of  the  jury  and  pass  on  the  weight  of  the  testimony, 
for  if  there  is  any  evidence  tending  to  prove  the 
facts  assumed,  it  is  for  the  jury  to  weigh  the  evi- 
dence, and  determine  whether  the  supposed  facts 
embraced  in  the  hypothetical  question  actually  cor- 
respond with  the  facts  as  proved  by  the  evidence.1 
In  a  case  in  Indiana,  it  has  been  decided  that 
an  instruction  was  substantially  correct  which 
informed  the  jury  that  the  facts  stated  in  an  hypo- 
thetical case  need  not  necessarily  be  always  fully 
proven  to  give  value  to  the  testimony  of  an  expert.2 
But  in  a  case  in  the  Supreme  Court  of  Michigan , 
Mr.  Justice  MORSE  says:  "The  answer  of  an  expert 
witness  to  a  hypothetical  question  must  be  sup- 
posed to  rest  on  all  of  the  facts  stated  in  such 
question;  and,  if  one  of  these  facts  is  not  found  in 
the  case,  the  jury  must  discard  the  answer  to  the 
question,  under  all  of  the  authorities.  And  the 
reason  of  the  rule  is  founded  upon  principle, 
and  is  clearly  apparent  without  argument." 
So  in  another  case  before  the  same  court,  the 
trial  court  charged  the  jury  that  it  was  im- 
portant for  them  just  as  far  as  they  could,  to  look 
into  the  evidence  and  determine  whether  the  facts 
assumed  in  the  hypothetical  question  actually  ex- 
isted, adding,  "because  if  one  fact  supposed  to  be 
true,  included  in  the  question,  is  untrue,  not  sup- 
ported by  the  evidence,  then  the  opinion  of  the 
doctor  would  be  valueless.  He  gives  his  opinion 
upon  a  certain  state  of  facts  supposed  to  be  true, 

1  Boardman  v.  Woodman,  47  N.  H.  120, 135;  Lake  v.  The  People,  1 
Parker's  Cr.  Gas.  495;  People  v.  Thurston,  2  Parker's  Cr.  Cas.  49. 

2  Epps  v.  The  State,  102  Ind.  539. 

s  Turnbull  v.  Richardson,  69  Mich.  400,  420. 


QUESTION    ON    CROSS-EXAMINATION.  79 

and  we  don't  know  what  his  opinion  would  be  if 
one  of  those  facts  were  withdrawn."  l  No  fault  was 
found  with  this  in  the  Supreme  Court.  And  in  a 
case  in  Wisconsin  it  is  said  that  if  the  question  fails 
to  assume  all  the  facts  essential  to  the  formation  of 
a  proper  opinion,  the  effect  of  the  testimony  based 
thereon  is  much  weakened,  if  not  entirely  destroyed, 
and  that  the  court  may  so  instruct  the  jury.2 

§  33.  The  Hypothetical  Question  ou  the  Cross- 
Examination. — The  general  rule  has  been  stated  in 
a  preceding  section  to  be,  that  on  the  direct  exam- 
ination of  an  expert  witness  it  is  error  to  include  in 
the  hypothetical  question  an  assumed  state  of  facts 
which  the  evidence  in  the  case  does  not  prove  or 
tend  to  prove.3  But  on  the  cross-examination  of 
the  witness  counsel  are  not  similarly  restricted. 
On  the  cross-examination  of  any  witness,  whether 
an  ordinary  or  an  expert  witness,  counsel  are  en- 
titled to  ask  any  questions  which  tend  to  test  the 
accuracy,  veracity  or  credibility  of  the  witness,  or 
which  tend  to  shake  the  credit  of  the  witness  by 
injuring  his  character,  although  the  facts  concerning 
which  he  is  questioned  may  be,  as  to  the  main  issue, 
irrelevant  and  collateral.4  Consequently,  on  the 
cross-examination  of  a  witness  testifying  as  an  ex- 
pert, counsel  may  be  permitted,  for  the  purpose  of 
testing  the  skill  and  accuracy  of  the  witness,  to  ask 
him  hypothetical  questions  pertinent  to  the  inquiry 
whether  the  facts  assumed  in  such  questions  have 
been  testified  to  by  witnesses  or  not.5  To  test  the 

1  People  v.  Foley,  64  Mich.  148, 156. 

2  Quinn  v.  Higgins,  63  Wis.  664. 
8  See  section  27. 

4  See  Stephen's  Digest  of  the  Law  of  Evidence,  Art.  129. 
s  Dillebar  v.  Home  Life  Ins.  Co.,  87  N.  Y.  79. 


80 


EXPERT    TESTIMONY. 


knowledge  and  competency  of  the  witness,  counsel 
may  ask  purely  imaginary  or  abstract  questions, 
assuming  facts  or  theories  having  no  foundation  in 
the  evidence.1  The  allowance  of  all  such  questions 
rests  in  the  sound  discretion  of  the  court,  and  where 
that  discretion  is  fairly  exercised  the  appellate 
court  will  not  interfere.2 

After  counsel  have  propounded  to  an  expert  a 
hypothetical  question,  based  on  the  facts  assumed 
to  have  been  proved  in  accordance  with  their  theory 
of  the  case,  opposing  counsel  may  propound  the 
same  question  to  the  same  witness  based  on  the 
facts  assumed  in  the  opposing  theory.3 

Upon  the  trial  of  a  person  indicted  for  murder, 
where  the  defense  was  insanity,  it  was  held  no 
error  to  require  the  defendant  to  submit  his  hypo- 
thetical case  to  his  professional  witnesses,  before  the 
rebutting  evidence  of  the  State  was  heard  on  the 
question  of  sanity.  The  court  declaring  that  if  evi- 
dence materially  varying  the  hypothetical  case  was 
afterwards  introduced,  the  defendant  must  ask  leave 
to  re-examine  as  to  new  matter.4 

§  34.  Questions  to  Experts  Should  not  Embrace 
Questions  of  Law. — It  is  not  proper  to  so  frame  a 
question  to  an  expert  as  to  call  for  an  expression  of 
an  opinion  as  to  the  law  of  the  case.  For  instance, 
it  is  improper  to  ask  a  medical  expert  whether  a 
person  possessed  sufficient  mental  capacity  to  enable 


1  People  v.  Augsbury,  97  N.  Y.  501;   Louisville,  etc.  R.  R.  Co.  v. 
Falvey,  104  Ind.  409,  415, 416;  Geisendorf  v.  Eagles,  106  Ind.  38;  People 
v.  Sutton,  73  Cal.  243. 

2  People  v.  Augsbury,  97  N.  Y.  501. 

3  Davis  v.  State,  35  Ind.  496;  Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104 
Ind.  409,  421 ;  Williams  v.  The  State,  64  Md.  384,  393. 

4  Dove  v.  State,  52  Tenn.  348. 


QUESTIONS    AS    TO    PARTICULAR   CASES.  81 

him  to  make  a  will.1  The  question  should  be  so 
framed  as  to  require  him  to  state  the  degree  of  intel- 
ligence or  imbecility  of  the  person,  in  the  best  way 
he  can,  by  the  use  of  such  ordinary  terms  as  will 
best  convey  his  own  ideas  of  the  matter.2  Or  the 
witness  may  be  asked  whether  the  testator's  mind 
and  memory  were  sufficiently  sound  to  enable  him 
to  know  and  understand  the  business  in  which  he 
was  engaged  at  the  time  he  executed  the  will.J 

§  35.      Questions  to  Experts  as  to  Particular  Cases. 

— While  the  opinion  of  experts  may  be  based  on 
their  observation  and  experience  in  similar  cases, 
yet  the  principle  is  well  settled  that  such  witnesses 
cannot,  on  their  direct  examination,  be  questioned 
concerning  the  particular  cases  which  have  happened 
to  come  within  their  observation,  and  which  have 
no  connection  with  the  case  in  hand.*  The  reason 
for  the  rule  is  manifestly  to  prevent  the  introduction 
of  innumerable  side  issues,  which  might  render  the 
trial  of  a  cause  interminable,  distract  the  attention 
of  the  jury  from  the  real  issue,  and  render  the  costs 
in  the  case  unnecessarily  burdensome  and  enormous. 
Different  experts  might  have  different  theories,  and 
each  theory  might  be  founded  on  the  observance  of 
several  and  distinct  cases,  each  of  which  the  oppo- 
site party  would  have  a  right  to  controvert.  And 


iFarrell  v.  Brennan,  32  Mo.  328;  McClintock  v.  Card,  32  Mo.  411; 
May  v.  Bradlee,  127  Mass.  414;  Gibson  v.  Gibson,  9  Yerg.  329;  White  v. 
Bailey,  10  Mich.  155. 

2  Fairchild  v.  Bascomb,  35  Vt.  416,  417;  State  v.  Hayden,  51  Vt.  304; 
Crowell  v.  Kirk,  3  Dev.  (N.  C.)  358. 

3  McClintock  v.  Card,  32  Mo.  411. 

4 1  Greenl.  Ev.  §  448;  Clark  v.  Willett,  35  Cal.  534, 544;  Central  Pacific 
R.  R.  Co.  v.  Pearson,  35  Cal.  247;  Jonau  v.  Ferrand,  3  Rob.  (La.)  366; 
Home  v.  Williams,  12  Ind.  324. 


82 


EXPERT   TESTIMONY. 


inasmuch  as  a  party  would  be  unable  to  anticipate 
the  cases  which  the  experts  on  the  other  side  would 
mention,  he  would  be  unable  to  prepare  for  their 
investigation,  and  would,  therefore,  be  unable  to 
properly  avail  himself  of  his  right  to  controvert 
them. 

§  36.  An  Expert  Cannot  be  Asked  for  an  Opinion 
on  Facts  not  stated. — An  expert,  testifying  from 
personal  knowledge,  cannot  be  asked  for  an  opinion 
based  on  facts  which  he  has  not  given  in  evidence. 
He  should  be  first  asked  as  to  the  facts,  and  then 
allowed  to  state  his  opinion.1  This  is  necessary  to 
enable  the  correctness  of  the  opinion  expressed  to 
be  tested  by  calling  other  experts,  and  obtaining 
their  opinion  upon  the  same  state  of  facts.  It  is 
equally  necessary  to  enable  the  jury  to  have  the 
means  of  determining  whether  the  facts  upon  which 
the  opinion  is  predicated  were  correct  or  not. 
Hence,  it  has  been  held  improper  to  ask  a  physician 
"whether  a  person  was  in  good  health  and  free  from 
any  symptoms  of  disease,"  he  not  having  testified 
to  any  facts  from  which  it  could  be  seen  upon  what 
his  opinion  was  based.2  For  the  same  reason  the 

1  Burns  v.  Barrenfield,  84  Ind.  43,  48,  where  it  is  said  :   "It  is  the  clear 
right  and  duty  of  the  jury  to  judge  of  the  truth  of  the  facts  upon  which 
the  opinion  of  the  expert  is  based.    If  his  opinion  is  based  upon  what 
he  may  suppose  he  knows  about  the  case,  upon  facts,  it  may  be  alto- 
gether irrelevant  and  unknown  to  the  jury,  it  would  be  impossible  for 
them  to  pass  upon  the  truth  of  the  facts  upon  which  the  opinion  may  be 
based,  or  to  apply  the  opinion  of  the  expert  to  the  facts.    Neither  court 
nor  jury  can  know  the  facts  upon  which  the  opinion  rests.   It  is  obvious 
that  where  the  expert  delivers  his  opinion  from  what  he  supposes  he 
knows  about  the  case,  he  must  assume  and  exercise  both  the  functions 
of  the  court  and  the  jury — he  determines  that  what  he  knows  is  both 
relevant  and  true.    The  relevancy  of  the  facts  must  be  determined  by 
the  court,  their  truth  by  the  jury.    The  witness  cannot  pass  upon  such 
questions."    To  same  effect,  Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104 
Ind.  409,  419. 

2  Reid  v.  Piedmont,  etc.  Life  Ins.  Co.,  58  Mo.  425. 


EXAMINATION    AND    CROSS-EXAMINATION.  83 

following  question  has  been  held  improper:  "From 
what  you  found  at  the  time,  in  the  examination  of 
her,  from  your  knowledge  of  her  during  the  years 
previous,  and  from  the  symptoms  which  you  ob- 
served at  that  time,  paralysis  or  trouble  with  her 
limbs,  and  the  other  difficulties  under  which  she  is 
laboring,  what  in  your  opinion  produced  the  condi- 
tion that  you  then  found  her  in?  "  So  it  has  been 
held  improper  to  ask  experts  who  saw  a  railroad 
accident,  whether,  in  their  opinion,  after  having 
seen  the  accident,  anything  could  have  been  done 
by  the  conductor  to  prevent  it.  It  called  for  an 
opinion  not  derived  from  the  testimony,  but  simply 
from  what  was  seen  at  the  time  of  the  occurrence.2 

The  opinion  of  an  expert  is  inadmissible  if  based 
on  facts  which  he  has  heard  outside  the  court  room, 
and  which  he  believes  to  be  credible.3  An  excep- 
tion exists  in  the  case  of  physicians  whose  testimony 
is  based  in  part  on  declarations  of  patients,  but  that 
is  elsewhere  considered.* 

§  37.  Other  Matters  Pertaining  to  the  Examina- 
tion and  Cross-Examination  of  Experts. — It  is  a  rule 
of  evidence  that  an  expert  may  be  asked  by  either 
party  as  to  the  reasons  on  which  his  opinion  is 
based;  or  he  may,  with  the  permission  of  the  court, 
give  such  explanation  on  his  own  account.  Counsel 
have  a  right  in  every  case  to  the  reasons  upon  which 
the  opinion  of  the  expert  is  based.5  In  an  early 

1  Van  Deusen  v.  Newcomer,  40  Mich.  120. 

2  Haggerty  v.  Brooklyn,  etc.  R.  R.  Co.,  61  X.  Y.  624. 

3  Polk  v.  State,  36  Ark.  117, 124;  Baltimore,  etc.  R.  R.  Co.  v.  Shipley, 
39  Md.  251. 

4  See  section  47. 

5  State  v.  Hooper,  9  Bailey  (S.  C.)  Law,  37;  Fairchild  v.  Bascomb,  35 
Vt.  398,406;  Lincoln  v.  Taunton  Manufacturing  Co.,  9  Allen  (Mass.; 
182, 191,  192;  Keith  v.  Lothrop,  10  Gush.  (Mass.)  457;  In  re  Springer, 


84  EXPERT   TESTIMONY. 

case  in  Massachusetts,  the  depositions  of  medical 
experts  on  the  question  of  a  person's  sanity  were 
rejected  because  the  experts  did  not  state  the  rea- 
sons for  their  opinion.1  "  When  ever  the  opinion  of 
any  living  person  is  deemed  to  be  relevant,  the 
grounds  on  which  such  opinion  is  based  are  also 
deemed  to  be  relevant."  Neither  judge  nor  jury 
can  know  what  credence  to  give  to  a  mere  opinion, 
unless  the  reasons  on  which  it  is  founded  are  set 
forth.  The  opinion  of  an  expert  may  be  contra- 
dicted, by  showing  that  at  another  time  he  had  ex- 
pressed a  different  opinion,3  and  he  may  be  asked 
as  to  the  grounds  upon  which  the  change  of  his 
opinion  had  been  brought  about.4  While  the  in- 
quiry into  the  grounds  and  reasons  of  the  opinion 
of  an  expert  is  more  frequently  made  on  the  cross- 
examination  of  the  witness,  yet  there  is  no  objection 
to  its  being  made  on  the  direct  examination.5  The 
rule  is  laid  down  that  in  the  examination  of  experts 
considerable  latitude  of  inquiry  is  to  be  indulged, 
and  that  counsel  are  not  to  be  limited  by  any  nar- 
row or  stringent  rules,  either  in  obtaining  their 
opinions  upon  the  facts  disclosed,  or  in  ascertaining 
their  skill  and  competency,  or  the  want  of  them.6 
"There  must  be  some  limit  to  such  an  inquiry,  and 
from  the  nature  of  the  case,  no  definite  limit  can  be 
prescribed  as  a  rule  of  law.  The  court  ought  to 

4Penn.  Law  J.  275;  Commonwealth  v.  Webster,  5  Cush.  (Mass.)  295; 
Leache  v.  The  State,  22  Tex.  App.  279. 

1  Dickinson  v.  Barber,  9  Mass.  218. 

2  Stephen's  Dig.  of  Ev.,  Art.  54. 

8  Sanderson  v.  Nashua,  44  N.  H.  492. 
*  People  v.  Donovan,  43  Cal.  162. 
8  Dickenson  v.  Fitchburg,  13  Gray,  546,  557. 

6  Leopold  v.  Van  Kirk,  29  Wis.  548,  555 ;  Brown  v.  Chenoworth,  51 
Tex.  469. 


EXAMINATION    AND     CROSS-EXAMINATION.  85 

permit  the  inquiry  to  proceed  far  enough  to  enable 
the  jury  to  judge  of  the  reasonableness  of  the  wit- 
ness' pretentious  to  skill,  so  far  as  such  an  inquiry 
can  afford  the  means."1  We  have  seen  that  on 
the  preliminary  examination  for  the  purpose  of  de- 
termining whether  a  witness  is  qualified  to  testify 
as  an  expert  the  court  is  at  liberty  to  examine  other 
witnesses  to  aid  it  in  determining  whether  the 
witness  in  question  is  qualified  to  give  testimony 
as  an  expert.2  But  it  is  now  to  be  observed 
that  after  a  witness  has  been  admitted  to  testify  as 
an  expert,  evidence  cannot  be  given  to  the  jury  of 
the  opinion  of  other  experts  in  the  same  science, 
that  the  witness  is  qualified  to  draw  correct  con- 
clusions on  the  science  on  which  he  has  been  ex- 
amined,3 the  general  rule  being,  that  after  such  a 
witness  has  been  adjudged  competent  by  the  court, 
his  reputation  can  only  be  sustained  after  it  has 
been  impeached.*  Any  different  rule,  it  has  been 
said,  " would  lead  to  anything  but  a  satisfactory  re- 
sult. Another  witness  might  then  be  called  to  give 
his  opinion  as  to  the  capacity  of  him  just  examined, 
to  form  a  correct  opinion  on  the  degree  of  weight 
which  was  due  to  the  testimony  of  the  first,  and  so 
on.  The  jury  are  to  judge  of  the  weight  due  to  the 
opinion  of  medical  men  on  the  disease,  from  the 
facts  detailed  by  them,  and  the  reasons  given  in 
support  of  their  conclusions,  not  from  the  opinion 
others  may  form  of  their  capacity."  It  has  been 
held  competent,  however,  for  one  expert  to  testify 

1  Andre  v.  Hardin,  32  Mich.  326. 

2  See  section  17. 

3  Tullis  v.  Kidd,  12  Ala.  648. 

4  De  Phul  v.  State,  44  Ala.  39. 

5  Brabo  v.  Martin,  3  La.  R.  177. 


86  EXPEKT   TESTIMONY. 

as  to  the  skill  of  another,  where  the  knowledge  of 
the  witness  was  derived  from  personal  observation, 
as  distinguished  from  an  opinion  based  on  such  ex- 
pert's general  reputation.1  In  the  case  cited,  one 
expert  was  allowed  to  testify  as  to  the  correctness  of 
the  tests  used  by  another  expert  in  testing  for 
arsenic.  A  witness  called  as  an  expert  cannot  be 
asked,  on  cross-examination,  whether  he  considers 
himself  as  good  a  judge  of  the  matter  in  dispute,  as 
other  witnesses  who  have  testified  as  experts,  for  the 
reason  that  such  a  question  is  simply  an  attempt  to 
get  the  opinion  of  the  witness  as  to  the  value  of  the 
testimony  of  the  experts  on  the  other  side.2  When 
a  witness  has  been  adjudged  competent  upon  the 
preliminary  examination,  opposing  proof  going  to 
his  incompetency  is  to  be  addressed  to  the  jury  to 
affect  the  value  of  his  testimony,  and  not  to  the 
court  for  the  purpose  of  excluding  his  opinion.3 
Attention  has  been  called  to  the  fact  that  it  is 
no  ground  for  objection,  that  counsel  was 
not  permitted  on  the  preliminary  examination 
of  the  expert,  to  cross-examine  him  for  the  pur- 
pose of  testing  his  competency,  the  oppor- 
tunity existing  on  the  cross-examination-in-chief 
to  test  and ,  impeach  his  skill,4  as  the  extent  of 
an  expert's  acquaintance  with  the  subject-matter 
may  always  be  inquired  into,  to  enable  the  jury  to 
estimate  its  weight.5  When  an  expert  was  called 
and  asked  if  he  concurred  in  the  statement  of 
another  expert  witness,  and  if  not,  to  state  wherein 

1  Laros  v.  Commonwealth,  84  Pa.  St.  200,  209. 

2  Haverhill  Loan,  etc.  Ass.  v.  Cronin,  4  Allen  (Mass.),  141. 
8  Washington  v.  Cole,  6  Ala.  212. 

4  See  section  17. 

5  Davis  v.  State,  35  Ind.  496. 


RULES  GOVERNING  EXAMINATION  OF  WITNESSES.      87 

he  differed,  the  court  held  this  method  of  examina- 
tion to  be  erroneous.  "The  mode  sought  to  be 
adopted  in  eliciting  the  opinion  of  this  witness  may 
have  the  merit  of  being  expeditious,  but  it  might 
be  attended  with  some  unfairness  toward  the  witness 
himself  as  well  as  to  the  opposite  party.  Witnesses 
called  upon  to  testify  professionally  should  be  left 
free  to  give  their  own  individual  opinion  upon  the 
facts  involved,  unconnected  with,  and  untrammeled 
by  the  opinions  of  others  who  may  have  been  ex- 
amined." 

§  38.  General  Rules  Governing1  the  Examination 
of  Witnesses. — It  would  be  foreign  to  our  purpose  to 
consider  in  detail  those  rules  of  evidence  regulating 
the  examination  of  witnesses,  which  are  alike  appli- 
cable to  the  examination  of  professional  and  non- 
professional  witnesses.  Yet  a  concise  statement  of 
the  more  important  principles  to  be  observed  in 
such  cases  may  be  found  of  convenience  in  this 
connection: 

I.  Evidence  should  be  confined  to  the  points  in 
issue,  and  evidence  of  collateral  facts  which  are  in- 
capable of  affording  any  reasonable  presumption  as 
to  the  principal  matter  in  dispute,  should  not  be  re- 
ceived.2 

(a)  Evidence  of  collateral  facts  may,  however,  be 
received  when  the  question  is  a  matter  of  science, 
and  where  the  facts  proved,  though  not  directly  in 
issue,  tend  to  illustrate  the  opinions  of  scientific 
witnesses.3 

II.  Leading  questions  should  not  be  asked  on  the 

1  Home  v.  Williams,  12  Ind.  324. 

Stroh  v.  Hinchman,  37  Mich.  490;    White  v.  Graves,  107  Mass.  325; 
Mansfield  Coal  Co.  v.  McEnery  91  Pa.  St.  185. 
3 1  Taylor  on  Evidence,  §  337. 


88  EXPERT   TESTIMONY. 

direct,  but  may  be  asked  on  the  cross-examination 
of  a  witness.1 

(a)  The  above  rule  may  be  relaxed  when  made 
necessary  by  the  complicated  nature  of  the  matter 
concerning  which  the  witness  is  interrogated.2 

(6)  And  the  rule  does  not  apply  when  the  witness 
appears  to  be  hostile  to  the  party  producing  him.3 

III.  In   England  the  rule  is  that  the  examination 
and  cross-examination  of  a  witness   must  relate  to 
the  facts  in  issue,  or  relevant  or  deemed  to  be  rele- 
vant thereto,  while  the  re-examination  must  be  di- 
rected to  an  explanation  of  the  matters  referred  to 
in  the  cross-examination.4     But  in  this  country,  the 
weight  of  authority  is  in  favor  of  confining  the  cross- 
examination  of  the  witness  to  the  facts  testified  to 
in  chief.5     The  English  rule  has  been  substantially 
adopted  in  Massachusetts  and  a  few  other  American 
States.6*  In  Michigan,   the   English  rule  has  been 
acted  on  in  practice,  and  the  rulings  of  the  Supreme 
Court  of  that  State  are  as  liberal  as  those  of  the 
Supreme    Court    of    Massachusetts    on    the    same 
subject.7 

IV.  On  the  cross-examination,  a  witness  may  be 
asked  any  question  tending,  (1)  to  test  his  accuracy, 
veracity  or  credibility,  or,  (2)  to  shake  his  credit  by 

1  State  v.  Benner,  64  Me.  267 ;  Doran  v.  Muller,  78  HI.  342 ;  People  v. 
Oyer,  etc.  Court,  83  JSf.  Y.  436. 

2  Bullard  v.  Hascall,  25  Mich.  132. 

8  Farmers'  Ins.  Co.  v.  Bair,  87  Pa.  St.  124. 

4  Stephens'  Dig.  of  Ev.,  Art.  127. 

5  Houghton  v.Jones,!  Wallace,  702;  Hughes  v.  Westmoreland    Co., 
104  Pa.  St.  207 ;  People  v.  Miller,  33  Cal.  99 ;  State  v.  Smith,  49  Conn. 
376;  Hurlbut  v.  Meeker,  104  111.  541. 

6  Blackiugton  v.  Johnson,  126  Mass.  21;  Beal  v.  Nichols,  2  Gray,  262; 
Linsley  v.  Lovely,  26  Vt.  123;  State  v.  Sayers,   58  Mo.  585;  Kibler  v. 
Mcllwain,  16  S.  C.  550. 

7  Turnbull  v.  Richardson,  69  Mich.  416;  People  v.  Barker,   60  Mich 
277,  302. 


RULES  GOVERNING  EXAMINATION  OF  WITNESSES.      89 

injuring  his  character.  And  he  may  be  compelled 
to  answer  the  same,  unless  such  answer  would  tend 
to  criminate  himself.1 

V.  If,  on  the  cross-examination,  a  witness  is  asked 
a  question  which  is  relevant  only  in  that  it  may  tend 
to  shake  his  credit  by  injuring  his   character,  his 
answer  cannot  be  contradicted  unless,  (1)  he  has 
denied  facts  tending  to  show  that  he  is  not  impar- 
tial, or,  (2)  he  has  been  asked  and  has  denied  or 
refused  to  answer  whether  he  has  been  convicted  of 
some  criminal  offense.2 

VI.  On  the  cross-examination,  a  witness  may  be 
asked  as  to  any  former  statements  which  he  may 
have  made,   and   which   are  inconsistent  with  his 
present  testimony.     If  he  denies  having  made  them, 
they  may  be  proven  against  him.3 

VII.  The  court  in  its  discretion   may  permit  a 
witness  to  be  recalled  for  further  examination.     If 
permission  is   granted   for  further  examination-m- 
chief,  or  further  cross-examination,  the  parties  have 
the  right  of  further  cross-examination  and  of  further 
re-examination  respectively.4 

VIII.  A  party  is  entitled  to  the  cross-examination 
of  a  witness  who  has  been,  (1)  examined-in-chief, 
or,  (2)  according  to  the  English  rule,  if  he  has  been 
intentionally  sworn.5 

1  People  v.  Arnold,  40  Mich.  710;  Duncan  v.  Seeley,  34  Mich.  369; 
People  v.  Noelke,  94  N.  Y.  137;  Commonwealth  v.  People,  105   Mass. 
163;  Storm  v.  United  States,  94  U.  S.  76;  Player  v.  Burlington,  etc.  R. 
B.  Co.,  62  Iowa,  723. 

2  Collins  v.  Stephenson,  8  Gray,  438. 

3  Horton  v.  Chadbourn,  31  Minn.  322;  State  v.  McLaughlin,  44  Iowa, 
82;  Conrad  v.  Griffey,  16  How.  (U.  S.)  38;  People  v.  Devine,  44  Cal. 
452;  State  v.  Grant,  79  Mo.  113. 

<  Continental  Ins.  Co.  v.  Delpench,  82  Pa.  St.  225;  Cummings  v.  Tay- 
lor, 24  Minn.  429. 
5  Stephens'  Dig.  of  Evidence,  Art.  126. 


90  EXPERT   TESTIMONY. 

§  39.  Excluding  Experts  from  the  Court  Room 
during  the  Examination  of  Witnesses. — The  princi- 
ple is  well  settled  that  the  judge,  on  the  application 
of  either  party,  may,  at  his  discretion,  order  a  sep- 
aration of  ordinary  witnesses,  in  order  that  they 
may  be  prevented  from  hearing  the  testimony  of  the 
witnesses  as  given  in  the  court  room.1  And  this 
practice  was  established  at  an  early  period,  being 
referred  to  with  approbation  by  Fortescue,  in  his 
work  De  Laudibus  Legum  Anglise.*  It  is  evident 
that  in  case  of  the  expert  witnesses  an  exception 
should  be  made.  As  they  are  to  be  examined  as  to 
opinions  based  on  facts  testified  to  by  other  wit- 
nesses, they  should  be  allowed  to  remain  in  court 
and  hear  the  evidence  relating  to  the  facts.  But 
when  the  testimony  as  to  the  facts  is  closed,  and  the 
expert  testimony  commences,  the  judge  may,  in  his 
discretion,  order  a  separation  of  the  expert  wit- 
nesses. Such  is  the  practice  in  Scotland,  where  it 
has  been  the  usual  practice  to  exclude  medical  wit- 
nesses as  soon  as  the  medical  experts  commence 
testifying  concerning  matters  of  opinion.3  In  En- 
gland the  rule  is  laid  down  that  "  medical  or  other 
professional  witnesses,  who  are  summoned  to  give 


1  Selfe  v.  Isaacson,  1  F.  &  F.  194;  Southey  v.  Nash,  7  C.  &  P.  632; 
Regina  v.  Newman,  3  C.  &  K.  260;  McLean  v.  State,  16  Ala.  672;  Wilson 
v.  State,  52  Ala.  299;  Pleasant  v.  State,  15  Ark.  624,  633;  People  v. 
Boscovitch,  20Cal.436;  Johnson  v.  State,  2  Ind.  652;  Errisman  v.Erris- 
man,  25  111.  136;  Davenport  v.  Ogg,  15  Kan.  363;  Sartorious  v.  State,  24 
Miss.  602;  Dyer  v.  Morris,  4  Mo.  214;  State  v.  Fitzsimmons,  30  Mo.  236; 
State  v.  Zellers,  7  N.  J.  L.  220;  Laughlin  v.  State,  18  Ohio,  99;  State  v. 
Salge,  2  Nev.  321 ;  Hopper  v.  Commonwealth,  6  Gratt.  (Va.)  684 ;  Bena- 
way  v.  Conyne,  3  Chand.  (Wis.)  214. 

"  Et  si  necessitas  exegerit  dividantur  testes  hujus  modi,  donee  ipsi 
de  posuerint  quicquid  velint,  ita  quod  dictum  unius  non  docebit  aut 
concitabit  eorum  alium  ad  consimiliter  testificandurn."  C.  26. 

3  Allison's  Practice  of  Crira.  Law  of  Scotland,  542. 


RIGHT  OF  COURT  TO  LIMIT  NUMBER  OF  EXPERTS.     9l 

scientific  opinions  upon  the  circumstances  of  the 
case,  as  established  by  other  testimony,  will  be  per- 
mitted to  remain  in  court  until  this  particular  class 
of  evidence  commences,  but  then,  like  ordinary  wit- 
nesses, they  will  have  to  withdraw,  and  to  come  in 
one  by  one,  so  as  to  undergo  a  separate  examina- 
tion." And  in  this  country  the  principle  is  sim- 
ilarly stated.2 

§  40.  Bight  of  the  Court  to  Limit  the  Number  of 
Expert  Witnesses. — The  number  of  expert  witnesses, 
whose  testimony  will  be  received  in  any  particular 
case,  rests  in  the  sound  discretion  of  the  trial  court. 
In  the  old  Roman  law,  the  power  of  the  court  to 
limit  the  number  of  experts  who  could  be  sworn, 
and  even  to  select  two  or  three  from  those  proposed 
by  the  parties,  excluding  the  others,  was  conceded 
to  exist.3  And  in  this  country,  the  right  of  the  court 
to  decline  to  permit  certain  witnesses  to  be  sworn  as 
experts,  after  a  sufficient  number  have  already  been 
examined,  has  been  maintained  in  several  cases.4 
But  it  would  not  be  proper  for  the  court  to  limit  a 
party  to  one  witness  on  any  vital  point.5  In  France 
the  number  of  experts  who  may  be  examined  in 
questions  of  handwriting  seems  to  be  limited  to 
three,6  while  in  Kansas  the  opinions  of  at  least  three 
experts  are  required  bylaw  to  establish  the  genuine- 
ness of  a  disputed  writing.7  In  a  recent  case  in 

1  2  Taylor's  Ev.,  §  1259.    And  see  Tait.  Ev.  420. 

2 1  Wharton's  Ev.,  §  492. 

8  Bartol  in  L.  1,  pr.  de  ventr.  iasp.  no.  5;  Bald,  in  L.  20,  cod.  de  fide 
inst. 

*  Sizer  v.  Burt,  4  Denio,  426;  Anthony  v.  Smith,  4  Bos.  (N.  Y.)  503, 
508;  Fraser  v.  Jennison,  42  Mich.  206,  223. 

5  See  Hubble  v.  Osborn,  31  Ind.  249. 

6  Code  de  Procedure  civille,  Part  1, 1.  2,  tit.  10,  s.  200. 

7  Gen.  Stat.  (1868)  p.  854,  §  216. 


92 


EXPERT   TESTIMONY. 


Michigan,  involving  testamentary  capacity,  the  trial 
court,  after  listening  to  the  testimony  of  five  experts 
called  by  the  contestants  of  the  will,  declined  to  per- 
mit a  sixth  expert  to  be  examined.  The  Supreme 
Court  sustained  the  action  of  the  court  below,  and 
Mr.  Justice  Cooley  said  :  "If  testamentary  cases  are 
ever  to  be  brought  to  a  conclusion,  there  must  be 
some  limit  to  the  reception  of  expert  evidence,  and 
that  which  was  fixed  in  this  case  was  quite  liberal 
enough.  To  obtain  such  evidence  is  expensive,  since 
desirable  witnesses  are  not  to  be  found  in  every  com- 
munity ;  but  an  army  may  be  had  if  the  court  will 
consent  to  their  examination  ;  and  if  legal  controver- 
sies are  to  be  determined  by  the  preponderance  of 
voices,  wealth,  in  all  litigation  in  which  expert  ev- 
idence is  important,  may  prevail  almost  of  course. 
But  one  familiar  with  such  litigation  can  but  know 
that,  for  the  purposes  of  justice,  the  examination  of 
two  conscientious  and  intelligent  experts  on  a  side 
is  commonly  better  than  to  call  more.  And  certainly 
when  five  on  each  side  have  been  examined,  the  limit 
of  reasonable  liberality  has  in  most  cases  been  reached. 
The  jury  cannot  be  aided  by  going  farther.  Little 
discrepancies  that  must  be  found  in  the  testimony  of 
those  even  who  in  the  main  agree  begin  to  attract 
attention  and  occupy  the  mind,  until  at  last,  jurors, 
with  their  minds  on  unimportant  variances,  come  to 
think  that  expert  evidence,  from  its  very  uncertainty, 
is  worthless.  This  is  not  a  desirable  state  of  things, 
and  it  can  only  be  avoided  by  confining  the  use  of 
expert  evidence  within  reasonable  bounds." 

§   41.      By  Whom  Expert  Witnesses  are  Selected. — 
In   France  experts  are  officially   delegated  by  the 

Eraser  v.  jennison,  42  Mich.   206,  223.     See  People  v.  Kemp,  76 
Micb.420. 


BY  WHOM  EXPERT  WITNESSES  ARE  SELECTED.         93 

court,  to  inquire  into  the  facts  and  report  thereon.1 
The  court  ex  officio  may  order  an  expertise  whenever 
it  considers  such  a  course  desirable,  or  the  court  may 
order  it  at  the  request  of  the  parties.  An  order  for 
an  expertise  must  contain  a  statement  of  the  precise 
matter  to  be  submitted,  and  an  appointment  of  the 
experts  as  well  as  of  a  referee.  The  parties  may 
agree  on  the  experts,  but  if  they  do  not  agree  the 
court  will  make  the  appointment  without  reference 
to  the  parties.  As  a  rule,  the  court  cannot  appoint 
less  than  three.  Avocats  or  barristers  are  not  allowed 
to  appear  before  the  experts,  but  the  parties  are  rep- 
resented before  them  by  persons  specially  skilled  in 
the  subject-matter  under  inquiry.  They  are  also 
represented  by  avoues.  As  a  rule,  any  one 'can  be  ap- 
pointed by  the  court,  although,  as  a  matter  of  fact, 
the  selection  of  the  experts  is  usually  made  from  a 
list  of  specialists  called  experts  assermentes.1  But 
in  Germany  even  greater  care  has  been  taken  to  pro- 
vide, that  only  those  who  are  in  every  way  qualified 
by  their  learning  and  experience  shall  be  permitted 
to  testify  in  the  character  of  experts.  The  courts  of 
that  country  are  not  granted  the  power  of  appoint- 
ment, nor  allowed  to  pass  upon  the  qualifications  of 
the  witnesses,  but  the  experts  in  criminal  cases  first 
summoned  are  exclusively  those  whom  the  State, 
after  prior  examination  of  their  competency  and 
skill  in  such  particular  inquiries,  has  duly  authorized 
to  testify  in  such  cases.  In  addition  to  this,  pro- 
vision is  made  for  an  appeal  to  a  tribunal  of  experts, 
to  which  the  opinions  of  the  expert  witnesses  can  be 
referred.3  In  Prussia  it  was  the  practice  for  the  State 

1  Code  de  Procedure  civile.  Part  1, 1. 2,  tit.  10,  s.  200. 

2  See  Am.  Law  Review  for  1885,  p.  392. 

3  Casper's  Gericht  Med.,  Berlin,  1871, 1,  §  3.    See  2  Wharton  &  Stille's 
Med.  Juris.  (Part  II)  §  1249. 


94  EXPERT   TESTIMONY. 

to  appoint  as  experts  a  physician  and  surgeon  for 
every  county.  A  medical  college  was  established  for 
each  province,  to  which  men  of  peculiar  knowledge 
in  medical  jurisprudence  were  assigned.  And  if  a 
difference  of  opinion  existed  between  the  county  ex- 
perts, or  the  parties  desired  an  appeal,  the  case  could 
be  brought  before  this  medical  college  of  the  prov- 
ince. In  addition  to  this  an  appellate  medical  com- 
mission for  the  whole  Kingdom  existed.1  In  En- 
gland and  in  this  country,  as  all  know,  the  practice 
has  been  entirely  different  from  that  adopted  in  either 
France  or  Germany.  Both  here  and  in  England  the 
parties  usually  select  their  own  experts,  and  pay 
them  their  compensation.  The  adoption  in  this 
country  of  the  German  system  of  governmental  ex- 
perts has  been  advocated  by  a  distinguished  writer 
on  medico-legal  questions,2  who  proposes  that  there 
should  be  selected  after  an  adequate  competitive  ex- 
amination, a  medical  expert  for  each  county  in  a 
State,  to  whom  should  be  referred  all  questions  of 
medical  science  that  might  arise  in  litigation.  It 
is  proposed  that  it  should  be  his  duty  to  take  testi- 
mony bearing  on  such  questions,  and  hear  counsel 
thereon,  and  after  having  judicially  heard  the  case, 
should  certify  his  opinion  to  the  court,  by  whom  the 
reference  was  made.  In  proper  cases  an  appeal 
could  be  taken  from  such  an  opinion  to  a  Supreme 
Court  of  governmental  experts  appointed  by  the 
state  at  large.  In  this  way  it  is  thought  that  the 
expert  would  be  free  from  the  embarrassment  of  any 
personal  relations  to  the  parties.  "  He  will  have  no 
client  to  serve,  and  no  past  partisan  extravagances  to 

1  Rechts  lexicon,  Leipzig,  1870, 1,  478. 

*  2  Wharton  &  Stille's  Medical  Jurisprudence,  Part  II,  §  1250. 


BY  WHOM  EXPERT  WITNESSES  ARE   SELECTED.         95 

vindicate.  He  will  render  his  opinion  as  the  advo- 
cate neither  of  another  nor  of  himself.  When  he 
speaks  he  will  do  so  judicially,  as  the  representative 
of  the  sense  of  the  special  branch  of  science  which 
the  case  invokes,  governed  by  the  opinion  of  the 
great  body  of  scientists  in  this  relation,  and  advised 
of  the  most  recent  investigations.  When  this  is 
done  we  will  have  expert  evidence  rescued  from  the 
disrepute  into  which  it  has  now  fallen,  and  invested 
with  its  true  rights  as  the  expression  of  the  particu- 
lar branch  of  science  for  which  it  speaks."  The  ap- 
pointment of  a  board  of  state  experts  certainly  has 
much  to  commend  it  to  judicial  approval.  By  the 
adoption  of  some  such  system,  the  mature  judgment 
of  the  best  minds  could  be  obtained,  and  the  super- 
ficial opinions  of  quacks  and  mountebanks  would 
not  be  thrust  upon  the  jury  to  their  confusion  and 
to  the  hinderance  of  justice.  Whether  the  experts 
are  appointed  by  the  court  or  by  the  state,  in  either 
case  there  would  be  eliminated  the  embarrassment 
caused  by  having  the  experts  appear  in  the  case  as 
the  interested  partisans  of  the  party  by  whom  they 
are  called  and  specially  paid.  But  while  we  should 
under  the  system  proposed  be  rid  of  some  of  the  em- 
barrassments we  now  labor  under,  there  are  certain 
disadvantages  connected  with  it  which  seriously  de- 
tract from  its  practicable  value.  Men  eminent  in 
one  branch  of  their  profession  often  have  but  a  super- 
ficial knowledge  of  other  branches,  and  a  physician 
who  may  be  very  able  and  learned  in  certain  subjects 
connected  with  his  profession,  may  be  quite  igno- 
rant of  certain  intricate  questions  of  medical 
science.  If  all  questions  of  medical  science  had 
to  be  referred  to  a  board  of  governmental  ex- 


96  EXPERT    TESTIMONY. 

perts,  suitors  would  be  practically  prohibited  from 
availing  themselves  of  the  testimony  of  other  ex- 
perts, who  might  be  much  better  qualified  by  their 
special  knowledge  on  that  particular  subject  to  form 
a  correct  and  accurate  opinion. 

Sir  James  Fitz james  Stephen  in  his  History  of  the 
Criminal  Law  declares  that  he  has  the  strongest  pos- 
sible opinion  in  favor  of  the  maintenance  of  the 
present  system.  ''Our  present  system,"  he  says, 
"  provides  a  definite  place  and  definite  rights  and 
duties  for  the  parties,  the  judge,  the  jury,  and  the 
witnesses.  What  room  there  is  for  any  other  person  in 
the  proceedings  I  do  not  see.  It  is  impossible  to  say 
what  an  expert  is  to  be  if  he  is  not  to  be  a  witness 
like  other  witnesses.  If  he  is  to  decide  upon  med- 
ical or  other  scientific  questions  connected  with  the 
case  so  as  to  bind  either  the  judge  or  the  jury,  the 
inevitable  result  is  a  divided  responsibility  which 
would  destroy  the  whole  value  of  the  trial.  If  the 
expert  is  to  tell  the  jury  what  is  the  law — say  about 
madness — he  supersedes  the  judge.  If  he  is  to  de- 
cide whether,  in  fact,  the  prisoner  is  mad,  he  super- 
sedes the  jury." 

A  distinguished  writer  on  the  jurisprudence  of 
medicine,  has  expressed  the  opinion  that  it  would 
be  better  to  take  away  from  counsel  the  examination 
of  experts,  and  devolve  it  upon  the  court.  "It 
would  be  better,"  he  says,  "were  it  possible,  for  the 
court  alone  to  examine  experts  upon  those  points  on 
which  their  professional  opinions  are  needed,  rather 
than  to  hand  them  over  to  counsel,  each  of  whom 
has  an  interest  in  making  their  testimony  aid  his  own 
side,  and  to  that  extent  forcibly  impressing  upon  it 

1 1  Stephen's  History  of  the  Orim.  Law,  p.  575. 


BY  WHOM  EXPERT  WITNESSES  ARE  SELECTED.         97 

a  unilateral  character."  The  learned  writer  has 
overlooked  the  fact  that  it  is  necessary  to  a 
thorough  and  enlightened  examination  of  an  ex- 
pert witness  on  an  intricate  question  of  med- 
ical, or  other  science,  that  the  examiner  should 
make  himself  as  familiar  as  possible  with  the 
subject-matter  of  inquiry.  To  prepare  himself 
for  the  examination  of  an  expert  witness,  coun- 
sel often  spend  days  and  even  weeks  in  the  careful 
investigation  of  the  scientific  question  involved. 
This  the  court  cannot  do,  both  for  want  of  time  and 
for  want  of  knowledge  of  the  questions  which  will 
be  raised.  It  is  the  part  of  wisdom  that  the  inquis- 
itorial and  judicial  functions  should  be  so  far  as  pos- 
sible kept  distinct. 

1  Ordonaux's  Jur.  of  Medicine,  §  104,  p.  123. 

(7) 


98  EXPERT   TESTIMONY. 


CHAPTER  IV. 


EXPERT  TESTIMONY  IN  MEDICINE,  SURGERY  AND 
CHEMISTRY. 


SECTIOK. 

42.  Competency  of  Physicians  to  Testify  as  Experts. 

43.  Disqualification  Arising  from  Information  Acquired  While  At- 

tending Patient. 

44.  Cases  in  Which  Physicians  may  Testify  Notwithstanding  the 

Prohibitory  Statutes. 

45.  Partial  Waiver  of  the  Privilege. 

46.  Opinions  Based  on  Statements  Made  out  of  Court  and  not  Under 

Oath. 

47.  Opinions  of  Physicians  Based  in  Part  on  Declarations  of  Patients. 

48.  Opinions  as  to  the  Condition  of  a  Patient. 

49.  Opinions  as  to  Cause  of  Death. 

50.  The  Nature  and  Symptoms  of  Disease. 

51.  Medical  Testimony  Relating  to  Wounds. 

52.  Who  are  Competent  to  Testify. 

53.  What  Testimony  is  Admissible  Concerning  Wounds. 

54.  Detection  of  Poison  by  Experts. 

55.  Who  are  Experts  in  the  Detection  of  Poisons. 

56.  Chemical  Analysis  of  Poison  not  Necessary,  When. 

57.  Chemical  Analysis  of  Contents  of  Stomach. 

58.  Order  of  Research  in  Analysis  for  Poisons. 

59.  Expert  Testimony  on  the  Subject  of  Blood. 

60.  Whether  Ordinary  Witnesses  may  Testify  as  to  Blood  Stains. 

61.  Blood  Stains — Proper  Question  Concerning. 

62.  Miscellaneous  Cases  in  Which  Opinions  of  Chemists  Have  Been 

Received. 

63.  Expert  Testimony  on  the  Subject  of  Hair. 

64.  Expert  Testimony  in  Malpractice  Cases. 

65.  Expert  Testimony  in  Cases  of  Rape. 

66.  Expert  Testimony  in  Cases  of  Abortion,  Pregnancy  and  Seduc- 

tion. 


COMPETENCY  OF    PHYSICIANS  TO  TESTIFY.  99 

67.  Opinions  of  Non-Professional  Witnesses  as  to  Mental  Condition. 

68.  Expert  Testimony  as  to  Mental  Condition. 

69.  Form  of  Question  as  to  Mental  Condition. 

70.  Evidence  Bearing  on  Question  of  Insanity. 

71.  Opinions  Concerning  the  Discretion  of  a  Person  of  Non-Age. 

72.  Right  to  Order  an  Examination  of  the  Person  by  Medical  Ex- 

perts in  Cases  of  Alleged  Impotency. 

73.  Who  Should  be  Appointed  to  Make  the  Examination. 

74.  When  Compulsory  Examination    in  Such  Cases  Will  Not  be 

Ordered. 

75.  Summoning  Experts  to  Assist  in  Determining  the  Proper  Inter- 

rogatories. 

76.  The  Subject  of  Inquiry — Structural  Defect — Impracticability  of 

Consumation. 

77.  Defraying  the  Expenses  of  the  Examination  by  the  Experts. 

78.  Compulsory  Examination  in  Criminal  Cases. 

79.  Compulsory  Examination  in  Actions  for  Damages. 

80.  Eefusal  to  be  Examined  by  a  Particular  Expert  who  is  Personally 

Obnoxious. 

81.  The  Opinions  of  Medical  Men  in  Miscellaneous  Cases. 

82.  Opinions  of  Non-Professional  Witnesses  on  Questions  Related  to 

Medical  Science. 

83.  Experts  in  the  Diseases  of  Animals. 

§  42.  Competency  of  Physicians  to  Testify  as  Ex- 
perts.— The  principle  is  well  established  that  physi- 
cians and  surgeons  of  practice  and  experience  are 
experts  in  medicine  and  surgery,  and  that  their  opin- 
ions are  admissible  in  evidence  upon  questions  that 
are  strictly  and  legitimately  embraced  in  their  pro- 
fession and  practice.1  Persons  are  presumed  to 
understand  questions  appertaining  to  their  own  pro- 
fession.2 While  the  above  is  the  general  rule,  it  will 
be  well  to  notice  certain  other  principles  on  which 
courts  have  acted  in  determining  questions  of  com- 
petency in  the  case  of  physicians  and  surgeons. 

1  Hathaway  Admr.  v.  National  Life  Ins.  Co.,  48  Vt.  335,351 ;  De  Phue 
v.  State,  44  Ala.  39;  Livingston  v.  Commonwealth,  14  Gratt.  (Va.)  592; 
Bird  v.  Commonwealth, 21  Gratt.  (Va.)  800;  State  v.  Clark,  15  S.  C.  (X. 
S.)  403,  408;  Olmsted  v.  Gere,  100  Pa.  St.  127;  State  v.  Slagle,  S3  N.  C. 
630. 

2  Jones  v.  White,  11  Humph.  (Tenn.)  268;  Missouri  Pacific  R.  R.  Co. 
v.  Finley,  38  Kan.  550. 


100  EXPERT   TESTIMONY. 

1 .  In  the  absence  of  some  statutory  provision  on 
the  subject,  it  is  not  necessary  that  physicians  or 
surgeons  should  be  graduates  of  any  medical  college, 
or  have  a  license  to  practice  from  any  medical  board, 
in  order  to  render  them  competent  to  testify  as  ex- 
perts in  relation  to  matters  connected  with  their  pro- 
fession.1    If  it  is  shown  that  the  witness  is  a  practic- 
ing physician  or  surgeon,  it  is  sufficient  evidence  that 
he  is  competent  to  express  an  opinion  upon  a  medi- 
cal question.     But  in  Wisconsin  the  legislature  has 
enacted  a  law  expressly  providing  that  '  'no  person 
practicing  physic  or  surgery  shall  have  the  right 
*     *     *     to  testify  in  a  professional  capacity  as  a 
physician  or  surgeon  in  any  case,  unless  he  shall  have 
received  a  diploma  from  some  incorporated  medical 
society  or  college,  or  shall  be  a  member  of  the  State 
or  some  county  medical  society,  duly  organized  in 
this  State."2 

2.  The  system  of  medicine  pursued  by  the  prac- 
titioner is,  in  general,  immaterial,  the  law  not  recog- 
nizing any  particular  school  of  medicine  to  the  ex- 
clusion of  others.3 

The  law  does  not  concern  itself  with  the  merits  of 
particular  systems  of  medicine,  medicine  not  being 
an  exact  science.  In  the  case  above  cited  the  court 
say:  "The  popular  axiom,  that  doctors  differ,  is  as 
true  now  as  it  ever  was,  and  as  long  as  it  continues 
to  be  so,  it  is  impossible  for  the  law  to  recognize  any 
class  of  practitioners,  or  the  followers  of  any  partic- 


Orleans,  etc.  K.  K.  Co.  v.  Allbritton,  38  Miss.  242;  State  v. 
Speaks,  94  N.  C.  865,  874. 

2  Wis.  An.  Stats.  (1889),  p.  888,  §  1436. 

3  Corsi  v.  Maretzek,  4  E.  D.  Smith  (N.  Y.),  1;  Bowman   v.  Woods,  1 
Greene  (Iowa),  441. 


COMPETENCY  OF    PHYSICIANS  TO  TESTIFY.          101 

ular  system  or  method  of  treatment,  as  exclusively 
entitled  to  be  regarded  as  doctors." 

3.  Neither  is  it  necessary  that  the  medical  witness 
should  have  made  a  specialty  of  the  particular  dis- 
ease which  is  the   subject  of  inquiry.     A  general 
practitioner  is,  ordinarily,  a  competent  witness.1 

It  is  a  well  known  fact  that  at  the  present  day 
various  classes  of  disease  have  been  made  specialties, 
and  that  many  practitioners  devote  themselves  ex- 
clusively to  certain  diseases  of  the  eye,  or  ear,  or 
lungs  and  throat,  or  heart,  or  nervous  diseases,  or 
diseases  of  the  brain.  But  the  law  does  not  require 
the  medical  witness  to  have  made  a  specialty  of  any 
one  of  these  subjects  to  qualify  him  to  testify  in  re- 
lation to  the  same.  Thus,  it  has  been  held  that  a 
physician  may  be  examined  as  to  injuries  done  to 
the  eyes  of  a  party  by  violence,  although  he  may 
not  be  a  surgeon  or  an  oculist.2 

4.  But  one  who  devotes  himself  exclusively  to 
one  branch  of  his  profession,  making  a  specialty  of 
that,  and  having  no  practical  experience  beyond  it, 
is   incompetent,   as  a  general  rule,  to  express  an 
opinion  on  a  question  that  does  not  pertain  to  his 
specialty. 

For  example,  a  specialist  in  diseases  of  the  eye 
cannot  testify  as  an  expert  in  relation  to  mental  dis- 
eases.3 And  so  it  has  been  held  that  a  physician 
was  incompetent  to  express  an  opinion  upon  the 
question  of  insanity,  whose  habit  it  had  been,  when 
his  patients  required  medical  treatment  for  insanity, 

1  Hathaway  v.  National  Life  Ins.  Co.,  48  Vt.  335,  351;  State  v.  Red- 
dick,  7  Kan.  143;  Hastings  v.  Rider,  99  Mass.  622;  Horton  v.  Green,  64 
N.  C.  64;  Kelly  v.  United  States,  27  Fed.  Rep.  616;  s.  C.,  8  Or.  Law 
Mag.  174. 

2  Castner  v.  Sliker,  33  X.  J.  L.  95;  s.  C.,  76.  507. 

3  Fairchild  v.  Bascomb,  35  Vt.  410. 


102  EXPERT   TESTIMONY. 

to  call  in  the  services  of  a  physician  who  had  made 
a  special  study  of  mental  diseases,  or  to  recommend 
their  removal  to  a  hospital  for  the  insane.1 

5.  A  general  practitioner  is  probably  not  incom- 
petent to  give  expert  testimony  on  the  ground  that 
he  had  not  had,  in  his  experience,  a  case  like  the  one 
in  question.2 

In  a  case  in  New  Hampshire,  a  practicing  physi- 
cian, whose  knowledge  of  the  particular  subject  of 
inquiry  was  derived  from  study  alone,  was  held  com- 
petent to  express  an  opinion  as  an  expert.3  And  on 
a  trial  for  abortion,  a  physician  was  held  competent 
to  state  the  effect  of  a  certain  drug  on  the  womb, 
although  he  was  without  any  personal  knowledge  of 
the  effects  of  the  drug,  his  knowledge  on  the  subject 
being  derived  from  reading.4 

But  a  contrary  ruling  has  been  made  in  the  Su- 
preme Court  of  Wisconsin,  in  a  criminal  trial  for 
murder  by  poison.  In  that  case  the  witness  had 
been  a  practicing  physician  for  twenty-five  or  thirty 
years,  but  he  had  never  had  a  case  of  arsenical  poison- 
ing to  treat  as  a  physician,  and  stated  that  all  his 
knowledge  about  the  symptoms  of  arsenical  poison- 
ing was  derived  from  his  study  of  medical  works, 
and  from  the  instruction  at  a  medical  college,  and 
not  from  any  practical  observation  of  his  own.  He 
was  on  that  account  held  incompetent  to  testify 
that  certain  symptoms  which  had  been  described  in- 
dicated arsenical  poisoning.5 


1  Commonwealth  v.  Bicb,  14  Gray  (Mass.),  335. 

2  State  v.  Clark,  12  Ired.  (N.  C.)  151 ;  Hathaway's  Admr.  v.  National 
Life  Ins.  Co.,  48  Vt.  335.    And  see  section  19. 

3  Taylor  v.  Grand  Trunk  K.  E.  Co.,  48  N.  H.  304. 

4  State  v.  Wood,  53  N.  H.  484. 

5  Soquet  v.  The  State,  72  Wis.  659. 


COMPETENCY  OF    PHYSICIANS    TO  TESTIFY.          103 

6.  But  a  general  practitioner  does  not  seem  to  be 
competent  to  testify  as  an  expert  on  a  question  which 
pertains  to  a  particular  branch  of  medical  science  to 
which  the  witness  has  given  no  study,  and  concern- 
ing which  he  has  had  neither  observation  nor  experi- 
ence. 

For  example,  in  a  recent  case  in  Mississippi,  the 
court  declared,  that  a  medical  practice  confined  to 
the  treatment  of  ordinary  diseases,  does  not  qualify 
a  physician  to  testify  as  an  expert  upon  insanity  upon 
hypothetical  interrogations  as  to  supposed  facts,  of 
which  he  had  no  personal  knowledge.1  But  his  testi- 
mony is  admissible  if  he  has  a  personal  knowledge 
of  the  facts,2  or  if  he  has  studied  somewhat  the  sub- 
ject of  psychological  medicine.3  It  has  been  held 
that  a  physician  who  had  been  in  practice  for  several 
years,  but  who  had  no  experience  as  to  the  effect 
upon  health  of  breathing  illuminating  gas,  could  no't 
testify  in  relation  thereto,  as  an  expert.4  The  fact 
that  he  was  a  physician,  it  was  said,  did  not  neces- 
sarily give  him  any  knowledge  of  gas  and  its  effects 
upon  health;  and  an  experience  in  attending  other 
persons,  who  were  alleged  to  have  been  made  sick 
by  breathing  gas  from  the  same  leak,  was  pronounced 
insufficient. 

7.  A  physician  or  surgeon,  otherwise  qualified, 
is  not  to  be  considered  disqualified  to  give  expert 
testimony  on  the  ground  that  he  is  not  engaged  in 
practice  at  the  time.5 

1  Russell  v.  State,  53  Miss.  367.    And  likewise  Commonwealth  v.  Rich, 
14  Gray  (Mass.),  335. 

2  Baxter  v.  Abbott,  7  Gray  (Mass.),  71. 

3  State  v.  Reddick,  7  Kan.  143 ;  Davis  v.  State,  35  Ind.  496.    See  too 
Bitner  v.  Bitner,  65  Pa.  St.  347,  and  Pidcock  v.  Potter,  68  Pa.  St.  347. 

4  Emerson  v.  Lowell  Gas  Light  Co.,  6  Allen,  146. 

5  Everett  v.  The  State,  62  Ga.  65.    And  see  section  18. 


104  EXPERT   TESTIMONY. 

The  fact  that  he  is  not  at  the  time  in  practice, 
does  not  go  to  his  competency,  but  only  to  his  credit.1 

Hence,  a  witness  was  held  competent  to  testify  as 
a  medical  expert,  who  stated  that  he  had  attended  a 
course  of  medical  lectures,  had  obtained  a  license 
from  the  State,  and  had  practiced  as  a  physician  for 
a  year,  when  he  abandoned  the  medical  profession 
for  that  of  the  law,  which  had  been  his  profession 
for  the  last  sixteen  years,  but  that  he  had  continued 
to  read  medical  works,  had  kept  up  with  the  im- 
provements made  in  the  science  of  medicine,  and  felt 
competent  to  express  a  medical  opinion  upon  the 
subject  of  inquiry.2 

8.  But  whether  he  must  at  some  time  have  been 
engaged  in  active  practice  seems  not  quite  clear. 

In  a  case  in  Alabama,  decided  in  1847,  the  court 
seemed  inclined  to  the  opinion  that  it  was  not  neces- 
sary that  the  witness  should  have  been  in  active 
practice,  but  what  was  then  said  was  simply  obiter 
dicta.  The  court  said:  "If  one  asserts  an  ability  to 
give  correct  opinions  upon  any  art  or  science,  from 
an  acquaintance  with  the  subject,  acquired  by  ob- 
servation and  study,  we  cannot  perceive  on  what 
ground  he  can  be  rejected  because  he  has  not  been 
in  the  actual  practice  of  his  profession."  On  the 
other  hand,  in  a  case  in  Vermont  in  1862,  that  court 
says:  "The  mere  fact  that  a  person  was,  by  educa- 
tion, a  physician,  if  he  had  not  practiced  his  pro- 
fession, we  should  not  deem  sufficient  to  justify  his 
admission  as  an  expert."* 


1  Roberts  v.  Johnson,  58  N.  Y.  613. 

2  Tullis  v.  Kidd,  12  Ala.  648,  650. 

3  Tullis  v.  Kidd,  12  Ala.  648,  650. 

4  Fairchild  v.  Bascomb,  35  Vt.  398,  409.     See  section  19. 


INFORMATION.  ACQUIRED  ATTENDING  PATIENT.     105 

9.  A  person  who  is  neither  a  physician  nor  sur- 
geon can  express  an  opinion  on  a  medical  question, 
when  the  matter  inquired  about  lies  within  the 
domain  of  the  profession  or  calling  which  the  witness 
pursues,  being  common  to  the  two  professions. 

For  example,  a  chemist  and  toxicologist,  who  is 
not  a  physician  or  surgeon,  is  competent  to  testify 
as  an  expert  concerning  the  effect  of  strychnine  upon 
the  human  stomach  and  upon  the  human  system. 
The  effect  of  poisons  on  the  human  system  falls 
within  the  scope  of  the  science  of  toxicology  as  well 
as  of  medicine.1 

So  a  midwife,  although  not  a  physician,  is  compe- 
tent to  testify  whether  the  birth  of  a  child  is  pre- 
mature.2 

§  43.  Disqualification  Arising  from  Information 
Acquired  while  Attending  Patient. — In  the  absence 
of  any  statutory  provision  to  the  contrary,  it  is  well 
settled  that  a  physician  or  surgeon  may  be  compelled 
to  disclose  any  communications  made  to  him  in  pro- 
fessional confidence.3  A  physician,  therefore,  is  not 
incompetent  at  the  common  law  to  testify  to  a  pro- 
fessional opinion  based  on  facts  learned  by  him  from 
such  communications. 

But  in  most  of  the  States  statutes  have  been 
enacted  which  have  abrogated  the  common  law  rule 
on  this  subject.  In  some  the  statute  is  that  "no 
person  duly  authorized  to  practice  physic  or  surgery, 
shall  be  compelled  to  disclose  any  information  which 
he  may  have  acquired  in  attending  any  patient  in  a 

1  The  State  v.  Cook,  17  Kan.  392. 

2  Mason  v.  Fuller,  45  Vt.  29. 

3  Stephen's  Dig.  of  Evidence,  Art.  117;  Dutchess  of  Kingston's  Case, 
Hargr.  St.  Tr.  243,  20  How.  St.  Tr.  613,  614;  Ashland  v.  Marlborough,  99 
Mass.  48;  Barber  v.  Merriam,  11  Allen,  322;  People  v.  Stout,  3  Parker 
Cr.  Gas.  670. 


106  EXPERT    TESTIMONY. 

professional  character,  and  which  information  was 
necessary  to  enable  him  to  prescribe  for  such  patient 
as  a  physician,  or  to  do  any  act  for  him  as  a  surgeon. ' ' 

While  in  others  it  is  provided  that  the  witness 
shall  not  be  competent,  or  shall  not  be  allowed  to 
make  the  disclosure.1 

When  a  party  seeks  to  exclude  the  testimony  of  a 
physician  under  these  statutory  provisions,  the  bur- 
den is  on  him  to  bring  the  case  within  the  provision. 

For  instance,  under  such  a  provision  as  exists  in 
New  York,  the  burden  would  be  on  him  not  only  to 
make  it  appear  that  the  information  Avhich  he  seeks 
to  exclude  was  acquired  by  the  witness  in  attending 
the  patient  in  a  professional  capacity,  but  also  that 
it  was  necessary  to  enable  him  to  act  in  that  capacity.2 
As  to  the  first  of  these  conditions — that  the  physi- 
cian attended  in  a  professional  capacity — it  is  not 
necessary  that  the  physician  should  have  been  em- 
ployed by  the  patient  himself.  Where  a  physician 


1  The  statutory  provision  on  this  subject  may  be  found  as  follows : 
Arkansas:  Dig  of  St.  1874,  p.  492,  §  2485.    Arizona:  Comp.  Laws  1877, 
p.  470,   §  2836.     California:    Code  of  Civil  Procedure    (Raymond  & 
Busch),  vol.  2,  p.  406,  §  1881.    Dakota:  Revised  Codes,  1877,  p.  563,  § 
499.    Idaho:  Laws  of  1875,  §  622.    Indiana:  R.  S.  1881,  p.  93,  §497. 
Iowa :  McClain's  Annotated  Code,  1888,  vol.  2,  §  4893.    Kansas :  Gen. 
Stat.,  1889,  §  4418.    Michigan:  2  How.  Ann.  St.  §  7516.    Minnesota: 
Gen  St.  1878,  p.  792,  §  10.    Missouri :  R.  S.  1879,  p.  690,  §  4017.    Mon- 
tana: Laws  of  1871-2,  p.  125,  §  450.    Nebraska:  Comp.  St.  1889,  p.  899, 
§333.    Nevada:  Baily  &  Hammond's  Gen.   St.,  §  3406.    New  York: 
Code  of  Proc.  §  834.     Oregon  :  Gen.  Laws  1843-72,  p.  251,  §  702,  cl.  4. 
Wisconsin:    Sanborn  &  Berryman's  Ann.  St.,  vol.  1,  p.  888,  §   1436. 
Wyoming:  Gen.  Laws  1869,  p.  572,  §  325.    Washington:  Code  1881,  p. 
102,  §  392.   There  may  be  other  States  and  Territories  containing  similar 
provisions,  the  above  list  not  being  considered  exhaustive. 

2  The  People  v.  Schuyler,  106  N.  Y.  298;  Edington  v.  ^Etna  Life  Ins. 
Co.,  77  N.  Y.  564,  569.    But  see  Matter  of  Darragh,  52  Hun,  593,  where 
the  Supreme  Court  does  not  understand  the  Court  of  Appeals  as  con- 
struing the  statute  so  as  to  hold  that  it  should  appear  that  the  informa- 

on  was  necessary  to  enable  the  physician  to  act. 


INFORMATION  ACQUIRED  ATTENDING  PATIENT.    107 

attends  for  consultation  by  request  of  another  physi- 
cian, the  case  falls  within  the  statute.1 

As  to  the  second  of  these  conditions — that  the  in- 
formation acquired  while  attending  the  patient  must 
have  been  such  as  was  necessary  to  enable  him  to 
prescribe  for  such  patient — it  is  clear  that  if  the 
physician  has  acquired  any  information  which  was 
not  necessary  to  enable  him  to  prescribe,  or  to  act  as 
a  surgeon,  he  can  be  compelled  to  disclose  it,  al- 
though he  acquired  it  while  attending  the  patient.2 

It  has  been  held  that  the  fact  that  a  witness  was 
the  jail  physician,  charged  with  the  duty  of  observ- 
ing and  treating  the  prisoners  confined  in  the  jail, 
including  the  prisoner  on  trial,  did  not  render  in- 
competent his  opinion  as  to  the  prisoner's  sanity, 
where  it  did  not  affirmatively  appear  that  the  rela- 
tion of  physician  and  patient  actually  existed,  and 
that  the  information  was  acquired  through,  or  for 
the  purposes  of  that  relation.  '  'The  nominal  relation 
of  physician  and  patient,  arising  out  of  the  legal 
duty  of  this  physician,  is  not  sufficient  to  exclude 
his  opinions  formed  from  his  observations  while  such 
nominal  relation  only  existed."3 

The  fact  that  a  physician  is  selected  and  sent  by 
the  public  prosecutor  to  attend  upon  a  female  on 
whom  an  abortion  is  charged  to  have  been  com- 
mitted, does  not  prevent  the  professional  relation  of 
physician  and  patient  arising  between  the  said  woman 
and  physician  so  as  to  prevent  his  disclosure  of  any 
information  thus  acquired,  she  having  accepted  his 

1  Renihan  v.  Dennin,  103  X.  Y.  573. 

2  Edington  v.  ^Etna  Life  Ins.  Co.,  77  N.  Y.  564,  570;  Steele  v.  Ward, 
30  Hun  (X.  Y.),  555;  Campau  v.  North,  39  Mich.  606. 

3  People  v.  Schuyler,  43  Hun  (X.  Y.),  88,  93— affirmed  in  106  N.  Y. 

298. 


108 


EXPERT   TESTIMONY. 


services.  She  had  a  right  to  decline  his  assistance, 
but  when  she  accepted  it  she  had  a  right  to  deem 
him  her  physician,  and  treat  him  accordingly.1 

It  has  been  made  a  question  under  these  statutes 
whether  the  information  which  the  physician  has 
acquired  from  the  patient,  but  cannot  disclose,  is 
confined  to  communications  made  by  the  patient  to 
the  physician,  or  whether  it  extends  to  any  informa- 
tion that  was  disclosed  to  any  of  his  senses.  The 
rule  is  that  the  statute  protects  with  the  veil  of 
privilege  whatever,  in  order  to  enable  the  physician 
to  prescribe,  was  disclosed  to  any  of  his  senses,  and 
which  in  any  way  was  brought  to  his  knowledge  for 
that  purpose.2  A  communication  to  the  physician's 
sense  of  sight  is  as  fully  within  the  statute  as  though 
it  had  been  orally  communicated,  and  information 
derived  from  observation  of  the  patient's  appear- 
ance and  symptoms  cannot  be  disclosed.3 

§  44.  Cases  in  which  Physicians  may  Testify  not- 
withstanding the  Prohibitory  Statutes. — The  statutes 

referred  to  in  the  preceding  section  were  passed  for 
the  benefit  of  the  patient,  and  for  the  sole  purpose 
of  enabling  individuals  in  need  of  medical  aid  to 
make  a  full  disclosure  of  the  facts  of  their  condition 
without  fear  of  a  betrayal  of  confidence.  This  being 
the  sole  purpose  of  the  enactment  of  these  statutes, 
the  patient  may  waive  the  privilege  which  the  stat- 
utes secure,  the  public  not  being  concerned  in  the 
suppression  of  the  information  when  there  is  no 
desire  for  suppression  on  the  part  of  the  patient. 

lrTbe  People  v.  Murphy,  101  N.  Y.  126, 130. 

2  Briggs  v.  Briggs,  20  Mich.  34. 

3Grattan  v.  Metropolitan  Life  Ins.  Co.,  92  1ST.  Y.  274;  Grattan  v. 
Metropolitan  Life  Ins.  Co.,  80  N.  Y.  297;  Edington  v.  Mutual  Life  Ins. 
Co.,  67  N.  Y.  185;  Gartside  v.  Conn.  Mut.  Life  Ins.  Co.,  76  Mo.  446; 
Heuston  v.  Simpson,  115  Ind.  62. 


PROHIBITORY    STATUTES.  109 

With  the  consent  of  the  patient  the  physician  may 
testify  notwithstanding  the  statutes.1 

But  the  question  arises  whether  this  right  of 
waiver  is  personal  to  the  patient  so  that  it  can  be 
exercised  by  him  alone,  his  personal  representatives, 
after  his  death,  not  being  entitled  to  exercise  it  as 
he  might  have  done. 

In  New  York,  under  a  statute  expressly  providing 
that  the  prohibition  shall  apply  unless  "expressly 
waived"  by  the  patient,  it  has  been  held  that  the 
executor  or  administrator  does  not  represent  the  de- 
ceased for  the  purpose  of  making  the  waiver.2  But 
where  the  statute  is  absolute  in  terms  containing  no 
such  provision  as  to  waiver,  the  courts  have  held  not 
only  that  the  patient  may  waive  the  privilege,  but 
that  those  who  represent  him  may  do  the  same  for  the 
protection  of  the  interests  they  claim  under  him.3 
Accordingly,  it  has  been  held  in  New  York  that 
their  statutory  provisions  are  applicable  to  the  case 
of  physicians  who  in  a  professional  capacity  have 
acquired  knowledge  concerning  the  mental  condition 
of  their  patients,  and  that  they  are  incompetent 
witnesses  to  testify,  from  knowledge  so  acquired,  as 

1  Grand  Rapids,  etc.  R.  R.   Co.   v.  Martin,  41  Mich.  667;  Groll  v. 
Tower,  85  Mo.  249,  overruling  Gartside  v.  Ins.  Co.,  76  Mo.  446;  Squires 
v.  City  of  Chillicothe,  89  Mo.  226;  Hoyt  .v.  Hoyt,  132  N.  Y.  493,  515; 
Morris  v.  Morris,  119  Ind.  341,  344. 

2  The  Court  of  Appeals  of  New  York  says :  "The  purpose  of  the  laws 
would  be  thwarted,  and  the  policy  intended  to  be  promoted  thereby 
would  be  defeated,  if  death  removed  the  seal  of  secrecy.    *    *    When- 
ever the  evidence  comes  within  the  purview  of  the  statutes,  it  is  abso- 
lutely prohibited,  and  maybe  objected  to  by  any  one  unless  it  be  waived 
by  the  person  for  whose  benefit  and  protection  the  statutes  were  enacted. 
After  one  has  gone  to  his  grave  the  living  are  not  permitted  to  impair 
his  fame  and  disgrace  his  memory  by  dragging  to  the  light  communica- 
tions and  disclosures  made  under  the  seal  of  the  statutes."    Westover  v. 
^tna  Life  Ins.  Co.,  99  N.  Y.  56,  59. 

3  Fraser  v.  Jennison,  42  Mich.  206,  225;  Morris  v.  Morris,  119  Ind.  341. 


110  EXPERT   TESTIMONY. 

to  the  mental  soundness  or  unsoundness  of  their 
deceased  patient,  when  the  question  involved  is  one 
of  testamentary  capacity,1  although  the  evidence 
will  be  received  if  the  objection  to  its  reception 
is  not  seasonably  interposed.2  On  the  other  hand, 
when  the  statutory  provision  is  different  from 
that  in  New  York,  already  referred  to,  the  legal 
representative  may  waive  the  privilege,  and  the 
physician  may  be  allowed  to  testify  as  to  the 
mental  condition  of  a  testator,  although  his  knowl- 
edge as  to  such  condition  was  obtained  while  in  the 
discharge  of  his  duty  as  his  attending  physician.3 

The  statutory  provisions  under  consideration,  be- 
ing designed  for  the  exclusive  protection  of  the  pa- 
tient, will  not  be  construed  so  as  to  prejudice  the 
public  interests,  provided  the  disclosure  to  be  ob- 
tained manifestly  works  no  injustice  to  the  spirit  and 
intent  of  the  law.  Hence  in  a  criminal  case  where 
the  patient  was  dead,  the  New  York  court  held  that 
his  physician  might  be  allowed  to  testify,  when  the 
information  disclosed  would  not  prejudice  the  de- 
ceased, but  would  aid  in  the  conviction  of  the  crim- 
inal. In  that  case  a  prisoner  was  charged  with 
murder  committed  by  the  administration  of  arsenic, 
the  State  called  as  a  witness  the  physician  who  at- 
tended the  deceased  in  a  professional  capacity,  and 
inquired  of  him  concerning  the  symptons  exhibited 
by  the  deceased,  and  what  he  had  learned  concern- 
ing his  condition  during  the  time  of  his  attendance 
upon  him.  Counsel  for  the  prisoner  objected  that 
the  examination  was  contrary  to  the  statute,  but 
the  Supreme  Court  overruled  the  objection  for  the 

1  Mather  v.  Coleman,  111  N.  Y.  220;  Renihan  v.  Dennin,  103  X.  Y.  573. 

2  Hoyt  v.  Hoyt,  112  X.  Y.  493. 

3  Morris  v.  Morris,  119  Ind.  341,  344  (1889.) 


PARTIAL  WAIVER  OF  THE  PRIVILEGE.  Ill 

reason  that  it  was  not  within  the  spirit  and  intent 
of  the  statute,  although  within  the  letter.1  The 
matter  was  taken  to  the  Court  of  Appeals,  and 
the  judgment  of  the  Supreme  Court  affirmed,  the 
court  saying:  "That  the  purpose  for  which  the 
aid  of  this  statute  is  invoked  in  this  case  is  so  ut- 
terly foreign  to  the  purposes  and  objects  of  the  act, 
and  so  diametrically  opposed  to  any  intention  which 
the  legislature  can  be  supposed  to  have  had  in  the 
enactment,  so  contrary  to  and  inconsistent  with  its 
spirit,  which  most  clearly  intended  to  protect  the 
patient,  and  not  to  shield  one  who  is  charged  with 
his  murder,  that  in  such  a  case  the  statute  is  not  to 
be  so  construed  as  to  be  used  as  a  weapon  of  defense 
to  the  party  so  charged,  instead  of  a  protection  to 
his  victim."  It  is  not  to  be  understood,  however, 
that  the  statute  does  not  apply  in  any  criminal  case. 
It  may  be  invoked  for  the  protection  of  the  criminal 
in  cases  where  the  latter  was  himself  the  patient  of 
the  physician  whose  testimony  is  desired.3 

When  it  is  proposed  to  introduce  in  evidence  the 
testimony  of  witnesses  who  are  disqualified  by  these 
statutes,  the  party  who  desires  to  claim  the  benefit 
of  the  statutes  must  seasonably  exercise  the  privilege 
by  objecting  to  the  evidence  at  the  time  it  is  offered. 
It  is  too  late  after  the  examination  has  been  insisted 
on,  and  the  evidence  has  been  received  without 
objection,  to  raise  the  question  of  competency  by  a 
motion  to  strike  it  out.4 

§  45.  Partial  Waiver  of  the  Privilege. — We  have 
seen  that  the  statutes  which  prohibit  the  disclosure 

1  Pierson  v.  People,  25  X.  Y.  Sup.  Ct.  239. 

2  Pierson  v.  People,  79  X.  Y.  434. 

3  The  People  v.  Murphy,  101  X.  Y.  126, 129. 

4  Hoyt  v.  Hoyt,  112  X.  Y.  493,  514. 


112  EXPERT   TESTIMONY. 

by  physicians  of  information  acquired  by  them  in  a 
professional  capacity  create  no  absolute  incompe- 
tency  and  give  no  right  to  the  physician  to  refuse 
to  testify,  but  simply  confer  a  privilege  which  the 
patient,  for  whose  benefit  the  provision  is  made, 
may  claim  or  waive.  But  assuming  that  the  patient 
waives  the  privilege  in  the  case  of  one  physician, 
the  important  question  presents  itself,  whether  by 
the  waiver  in  the  case  of  one  physician  he  does  not 
waive  the  statute  entirely  and  open  up  the  whole 
subject  rendering  admissible  the  testimony  of  other 
physicians 'who  are  acquainted  with  the  case.  The 
courts,  in  the  few  cases  that  have  thus  far  arisen, 
have  held  that  the  patient  who  waives  the  statute 
as  to  one  physician  does  not  thereby  lose  his  right 
to  insist  on  his  privilege  as  respects  other  physicians. 
Thus,  in  a  case  where  the  plaintiff  had  three 
physicians,  each  one  at  a  different  time  from  the 
other,  and  allowed  one  of  them  to  testify  as  to  the 
extent  and  character  of  her  injuries,  she  was  allowed 
to  insist  on  her  privilege  and  exclude  the  testimony 
of  the  other  two,  who  were  called  on  behalf  of  the 
defendant.1  And  so  where  two  physicians  were 
called  on  one  occasion  in  consultation,  and  the 
plaintiff  waived  her  privilege  as  to  one  by  calling 
him  to  testify,  it  was  held  that  she  did  not  thereby 
loose  her  right  to  insist  on  her  privilege  as  against 
the  other  physician  called  to  testify  by  the  defend- 
ant.2 


1  Hope  v.  Troy,  etc.  R.  R.  Co.,  40  Hun,  438    (1886)  :  This  court  say : 
''The  defendant  urges  that  when  the  plaintiff  waived  her  right  with  re- 
spect to  one  physician  she  opened  the  case  to  the  others,  but  the  statute 
does  not  seem  to  permit  such  construction."   To  the  same  effect  is  Penn 
Mutual  Life  Insurance  Co.  v.  Wiler,  100  Ind.  102. 

2  Record  v.  Village  of  Saratoga  Springs,  46  Hun,  450  (1887). 


OPINIONS    BASED    OX    DECLARATIONS.  113 

§  46.  Opinions  Based  on  Statements  made  out  of 
Court  and  not  under  Oath. — The  rule  is  that  an  ex- 
pert cannot  be  allowed  to  give  his  opinion  based 
upon  statements  made  to  him  by  parties  out  of  court 
and  not  under  oath.1  His  opinion  to  be  admissible 
must  be  founded  either  on  his  own  personal  knowl- 
edge of  the  facts,  upon  facts  testified  to  in  court,  or 
else  upon  an  hypothetical  question.2  Hence  the 
opinion  of  a  physician,  called  in  consultation  with 
the  attending  physicians,  cannot  be  received  if  based 
upon  declarations  made  to  him  by  such  physicians, 
or  by  the  wife  and  nurse  of  the  patient  as  to  his 
previous  symptons  or  condition.3  It  has  never  been 
held  that  a  medical  expert  has  the  right  to  give  in 
evidence  an  opinion  based  on  information  which  he 
has  derived  from  private  conversations  with  third 
parties. 

§  47.  Opinions  of  Physicians  Based  in  Part  on 
Declarations  of  Patients. — But  the  principle  stated 
in  the  preceding  section  does  not  apply  to  the  opin- 
ions of  a  physician  or  surgeon,  based  in  part  on 
statements  made  by  the  patient  himself  to  the  phy- 
sician, to  enable  the  latter  to  determine  upon  the 
proper  course  of  treatment.  Upon  this  point  the 
Supreme  Court  of  Massachusetts  says:  "The  opin- 
ion of  a  surgeon  or  physician  is  necessarily  formed 
in  part  on  the  statements  of  his  patient,  describing 
his  condition  and  symptons,  and  the  causes  which 

1  Hurst  v.  The  C.  R.  I.,  etc.  R.  R.  Co.,  49  Iowa,  76,  79. 

2  Grand  Rapids,  etc.  R.  R.  Co.  v.  Huntley,  38  Mich.  537;  Hunt  v.  The 
State,  9  Texas  Ct.  of  App.  166;  Louisville,  etc.  R.  R.  Co.  v.  Shires,  108 
111.  617. 

3  Heald  v.  Thing,  45  Me.  392;  Wood  v.  Sawyer,  Phillips  (N.  C.),  253; 
Wetherbee's  Exr's.  v.  Wetherbee's  Heirs,  38  Vt.  454;  Hunt  v.  The  State, 
9  Texas  Ct.  of  App.  166;  Louisville,  etc,  R.  R.  Co.  v.  Shires,  108  El.  617, 
630. 

(8) 


114  EXPERT   TESTIMONY. 

have  led  to  the  injury. or  disease  under  which  he 
appears  to  be  suffering.  This  opinion  is  clearly 
competent  as  coining  from  an  expert.  *  *  The 
existence  of  many  bodily  sensations  and  ailments 
which  go  to  make  up  the  symptoms  of  disease  or  in- 
jury, can  be  known  only  to  the  person  who  experi- 
ences them.  It  is  the  statement  and  description  of 
these  which  enter  into,  and  form  part  of  the  facts  on 
which  the  opinion  of  an  expert,  as  to  the  condition 
of  health  or  disease,  is  founded."  An  excellent 
illustration  of  the  principle  is  afforded  by  a  case  de- 
cided in  Wisconsin  in  1879.  The  action  was  brought 
to  recover  damages,  for  an  injury  sustained  by  the 
negligence  of  the  defendant,  the  plaintiff  claiming 
to  be  lame  in  her  hip  and  to  suffer  pain  there,  and 
that  she  was  unable  to  use  her  limb  as  she  had  used 
it  before  the  accident.  That  it  was  still  so  weak  and 
painful  as  to  render  it  unsafe  for  her  to  attempt  to 
walk  without  the  aid  of  a  crutch.  At  the  suggestion  of 
.the  defendant,  the  plaintiff  submitted  to  an  exami- 
nation by  experts  for  the  purpose  of  testing  the 
truthfulness  of  the  claim,  and  of  placing  before  the 
jury  her  real  condition.  The  result  of  the  examina- 
tion was  that  the  experts  found  no  such  appearances 
as  would  indicate  lameness  or  pain.  As  one  of  the 
experts  testified,  "the  general  opinion  was  that  we 
could  not  find  anything.  The  only  way  I  could 
tell  that  she  ached  was  by  what  she  said,  and  how 
she  looked  and  appeared."  Counsel  for  the  defend- 
ant claimed  that  an  error  was  committed  in  permit- 
ting one  of  the  experts,  who  testified  as  above,  to 
answer  the  following  questions: 

1  Barber  v.  Merriam,  11  Allen,  322,  324.  See  also  Thompson  v.  Treva- 
nion,  Skinner,  402;  Aveson  v.  Kinnaird.  6  East,  188,  195.  197;  Bacon  v. 
Cuarlton,  7  Cush.  581,  586;  Denton  v.  State,  1  Swan  (31  Tenu.),  279. 


OPINIONS    BASED    OX    DECLARATIONS.  115 

"Question.  Do  you  think  that  you  could  tell 
whether  or  not  she  suffered  pain  by  the  movement 
of  the  hip,  judging  from  all  the  examination,  in- 
cluding what  she  said?  Answer.  I  think  I  could. 
Q.  Now,  go  on  and  state  whether,  in  your  opinion, 
she  did  suffer  pain?  A .  She  gave  every  indication 
of  suffering  pain.  Q.  In  your  opinion,  did  she  suffer 
pain?  A.  Yes,  sir;  that  is  my  opinion,  that  she 
did." 

It  was  claimed  that  this  was  in  effect,  asking  the 
witness  whether  he  believed  the  statements  of  the 
plaintiff  that  she  suffered  pain.  The  Supreme  Court 
held  that  the  questions  were  proper.  That  as  the 
plaintiff  insisted  upon  the  fact  of  lameness  and  pain, 
it  was  a  question  for  the  experts  whether  such  pains 
and  lameness  were  imaginary,  feigned  or  real;  and 
that  to  determine  this,  it  was  necessary  to  resort  to 
other  evidence  than  those  to  be  derived  from  the 
limb  itself.  "And  in  such  case,  we  think  it  is  clearly 
competent  for  the  expert  to  give  an  opinion  from 
the  general  appearance,  actions  and  looks  of  the  pa- 
tient, and  what  she  says  at  the  time  in  regard  to 
her  condition."  l 

The  above  rulings  are  clearly  sustained  by  the 
authorities.  It  is  entirely  competent  for  physicians 
or  surgeons  to  give  to  the  jury  their  opinions  based 
on  a  personal  examination  of  the  patient  and  on 
statements  made  by  the  patient  at  that  time  as  to 
the  patient's  present  bodily  condition.2  Not  only 
so,  but  what  the  patient  said  to  the  physician  as  to 

1  Quaife  v.  Chicago,  etc.  R.  R.  Co.,  48  Wis.  513. 

2  Louisville,  etc.  R.  R.  Co.  v.  Snyder,  117  Ind.  435;  Illinois  Central  R. 
R.   Co.  v.  Sutton,  42  111.438;  Fort  v.  Brown,  46  Barb.    (X.  Y.)   366; 
Louisville,  etc.  R.  R.  Co.  v.  Falvey,  104  lud.  409;  Wilson  v.  Town  of 
Granby,  47  Conn.  59,  76;  Caldwell  v.  Murphy,  11  N.  Y.  416;  Denton  v. 
The  State,  1  Swan  (Tenn),  279. 


116  EXPERT    TESTIMONY. 

his  present  bodily  condition  is  admissible,1  although 
the  physician  cannot  give  to  the  jury  as  evidence  the 
patient's  history  of  the  case,  or  statements  in  re- 
spect to  the  cause  of  the  trouble,  or  in  respect  to 
past  experience  with  it;  neither  can  he  express  an 
opinion  which  he  bases  on  such  history  or  state- 
ments as  to  past  experience.2 

But  it  has  been  held  that  a  physician  may  testify 
to  a  statement  or  narrative  given  by  a  patient  in  re- 
lation to  his  condition,  symptoms,  sensations  and 
feelings,  both  past  and  present,  when  such  state- 
ments were  received  during,  and  were  necessary  to 
an  examination  with  a  view  to  treatment,  or  when 
they  are  necessary  to  enable  him  to  give  his  opinion 
as  an  expert  witness.3  Moreover,  it  has  been  held 
that  the  opinion  of  the  physician  and  the  patient's 
accompanying  statements  are  admissible,  although 

1  State  v.  Gedicke,  43  N.  J.  L.  86;  Illinois  Central  R.  R.  Co.  v.  Sutton, 
42  111.  438;  Cornelison  v.  Common  wealth,  84  Ky.  593;  Mayo  v.  Wright, 
63  Mich.  32;  Harris  v.  Detroit  City  Railway  Co.,  76  Mich.  227. 

2  A.  T.,  etc.  R.  R.  Co.  v.  Frazier,  27  Kan.  463;  Heald  v.  Thing,  45  Me. 
392;  The  People  v.  Murphy,  101  N.  Y.  126,131.    In  Insurance  Co.  v. 
Mosley,  8  Wall.  397,  405,  the  court  say:  "The  declarations  of  the  party 
himself  are  received  to  prove  his  condition,  ills,  pains,  and  symptoms, 
whether  arising  from  sickness,  or  an  injury  by  accident  or  violence.     If 
made  to  a  medical  attendant,  they  are  of  more  weight  than  if  made  to 
another  person.    But  to  whomsoever  made,  they  are  competent  evi- 
dence.    *     *    It  must  relate  to  the  present  and  not  the  past.     Anything 
in  the  nature  of  narration  must  be  excluded.    It  must  be  confined  strictly 
to  such  complaints,  expressions,  and  exclamations,  as  furnibh  evidence 
of  a  present  existing  pain  or  malady/'    And  see  Towle  v.  Blake,  48  ST. 
H.  92;  Taylor  v.  Railway,  48  N.  H.  305;    Hyatt  v.  Adams,  16  Mich.  180, 
200;  Johnson  v.  McKee,  27  Mich.  471;  Elliott  v.  Van  Buren,  33  Mich. 
49;  United  States  v.  Faulkner,  35  Fed.  Rep.  730. 

3  The  Cleveland,  etc.  R.  R.  Co.  v.  Newell,  104  Ind.  264,271  (1885); 
Yeatman  v.  Hart,  6  Humph.    (Tenn.)    374;  Looper  v.   Bell,   1  Head 
(Tenn.),  373.    In  Yeatman's  case,  supra,  the  court  say:     "The  physi- 
cian says  the  history  of  the  disease  is  a  necessary  element  in  determin- 
ing its  nature  and  character.     That  this  is  true,  the  observation  and 
common  sense  of  every  man  will  confirm."    See  also  Ecles  v.  Bates,  26 
Ala.  655. 


OPINIONS    BASED    OX    DECLARATIONS.  117 

the  examination  of  the  patient  and  the  statements 
were  made  after  the  commencement  of  the  action  and 
not  wholly  with  a  view  of  receiving  medical  treat- 
ment.1 And  there  also  is  authority  for  saying  that 
statements  made  to  the  experts  by  the  patient  are 
admissible,  although  made  in  the  course  of  an  ex- 
amination voluntarily  applied  for  after  suit  com- 
menced, and  which  examination  was  had  with  no 
other  purpose  in  view  than  that  the  examining  phy- 
sician should  thereby  become  qualified  to  testify  as 
a  witness.2  But  upon  this  question  the  authorities 
are  in  conflict.  Thus,  it  has  been  held  in  the  Su- 
preme Court  of  Michigan,  that  exclamations  of 
pain  were  properly  excluded  from  evidence,  when 
they  were  made  at  a  medical  examination,  con- 
ducted after  the  controversy  arose,  and  with  no 
view  to  medical  treatment  but  for  the  purpose 
of  obtaining  testimony.3  In  that  case  the  court 
say:  "It  is  not  necessary  to  consider  whether 
there  may  not  be  properly  received,  in  some  cases, 
the  natural  and  usual  expressions  of  pain  made 
under  circumstances  free  from  suspicion,  even  post 
liten  molam.  The  case  must  at  least  be  a  very  plain 
one  which  will  permit  this."  This  case  has  been 
followed  in  the  Supreme  Court  of  Connecticut,  where 
such  evidence  was  held  "clearly  inadmissible."* 
Of  course  a  physician  will  not  be  allowed  to  testify 

1  The  Cleveland,  etc.  R.  R.  Co.  v.  Newell,  104  Ind.  264,  271. 

2  Kent  v.  Town  of  Lincoln,  32  Vt.  592  (1860)  ;  Matteson  v.  New  York 
Central  R.  R.  Co.,  35  N.  Y.  487,  491  (1866) ;  State  v.  Gedicke,  43  X.  J. 
Law,  86  (1881). 

8  Grand  Rapids,  etc.  R.  R.  Co.  v.  Huntley,  38  Mich.  537,  545. 

4  Darrigan  v.  New  York,  etc.  R.  R.  Co.,  52  Conn.  285,  309,  where  the 
court  say:  "If  otherwise  easy  facilities  would  be  furnished  for  parties 
to  introduce  in  evidence  their  own  declarations,  made  out  of  court,  not 
under  oath,  and  where  the  temptation  to  exaggerate,  and  even  to  utter 
untruths,  would  be  pretty  strong." 


118  EXPEET   TESTIMONY. 

as  to  statements  made  to  him,  in  the  absence  of  the 
plaintiff,  by  the  latter 's  attending  physician,  con- 
cerning the  character  of  an  injury  sustained  by  the 
plaintiff.1  And  statements  by  a  party  as  to  the 
manner  of  his  injury,  not  necessary  to  diagnose  his 
case,  cannot  be  given  in  evidence  by  an  attending 
physician  any  more  than  they  could  be  by  a  non- 
professional  man.2 

§  48.  Opinions  as  to  the  Condition  of  a  Patient. — 
A  physician  may  give  his  opinion  as  to  the  actual 
condition  of  a  patient  whom  he  has  visited,3  or  whose 
symptoms  and .  condition  have  been  described  by 
others.4  He  may  state  his  belief  that  a  woman  had 
been  delivered  of  a  child  within  three  or  four  days, 
and  state  his  opinion  as  to  the  condition  of  her  mind 
at  the  time  of  giving  birth  to  the  child.5  And  he 
may  state  what  effect  certain  drugs  would  have  upon 
a  person  in  a  particular  condition.6  But  it  has  been 
held  that  he  cannot  be  asked  his  opinion,  from  the 
condition  of  a  person  whom  he  has  not  seen,  as  de- 
scribed by  witnesses  whose  testimony  was  conflict- 
ing, whether  the  attention  of  a  physician  was  neces- 
sary.7 He  may  be  asked  whether  an  .ascertained 
condition  of  suffering  or  bad  health  might  have  been 
caused  by  a  previous  injury.8 

1  City  of  Goshen  v.  England,  119  Ind.  368. 

2  Dundas  v.  City  of  Lansing,  75  Mich.  499. 

3  Bush  v.  Jackson,  24  Ala.  273;  Bennett  v.  Fail,  26  Ala.  605;  Knox  v. 
Wheelock,  56  Vt.  200;  Spear  v.  Hiles,  67  Wis.  367;  Myers  v.  State,  84 
Ala.  11. 

4  Livingston  v.  Commonwealth,  14  Gratt.  592;   Cooper  v.   State,  23 
Texas,  336,  340. 

5  State  v.  Matthews,  66  X.  C.  113. 

6  Hoard  v.  Peck,  56  Barb..   (X.  Y.)   202,  210.    That  the  opinions   of 
physicians  are  admissible  as  to  the  ordinary  effect  of  medicines,  see  also 
Cooper  v.  State,  23  Texas,  336,  340;  Batten  v.  State,  80  Ind.  394. 

7  Wilkinson  v.  Mosely,  30  Ala.  562. 

8  Turner  v.  City  of  Xewburgh,  109  X.  Y.  301. 


OPINIONS  AS  TO  CAUSE  OF    DEATH.  Il 

§  49.  Opinions  as  to  Cause  of  Death. — The  opin- 
ions of  physicians  are  also  received  as  to  the  cause 
of  the  death  of  any  particular  person;  such  opinion 
being  founded  either  upon  a  personal  knowledge  of 
the  facts  of  the  case,  or  upon  a  statement  of  the 
symptoms  of  the  disease  as  detailed  by  others.1  If 
such  opinions  were  not  received,  it  would  be  impos- 
sible in  many  cases  to  prove  the  cause  and  manner 
of  death,  especially  in  those  cases  where  there  was 
no  one  present  at  the  time  of  death.  In  such  cases 
the  opinions  of  physicians  and  surgeons  who  have 
made  a  post-mortem  examination  of  the  deceased, 
seem  to  be  necessary  in  order  to  ascertain  the  facts 
and  clear  up  the  mystery.  An  experienced  physician 
has  been  allowed  to  give  his  opinion  that  deceased 
was  dead  before  a  certain  train  passed  over  the  body.2 
On  the  trial  of  an  indictment  for  infanticide,  where 
there  were  no  marks  of  violence  on  the  dead  child, 
a  physician  has  been  allowed  to  testify  that  there 
were  several  modes  of  causing  death  without  leaving 
upon  the  body  any  evidence  of  the  means  employed.8 

A  medical  expert  has  been  allowed  to  give  in  evi- 
dence his  opinion  whether  a  still-born  child  could 
have  been  born  alive  if  medical  assistance  had  been 
received  in  time.4  He  may  state  his  opinion  that 
death  was  caused  by  drowning.5  And  where  the 

1  Pitts  v.  State,  43  Miss.  472;  State  v.  Bowman,  78  N.  C.  509;  Shelton 
v.  State,  34  Tex.  666 ;  State  v.  Baptiste,  26  La.  Ann.  134,  137;  State  v. 
Smith,  32  Me.  370;  Mitchell  v.  State,  58  Ala.  418;  State  v.  Pike,  65  Me. 
Ill,  114;  Polk  v.  State,  36  Ark.  117, 124;  Powell  v.  State,  13  Texas  Ct. 
of  App.  244;  Boyle  v.  State,  61  Wis.  440;  Xewton  v.  The  State,  21  Fla. 
56;  People  v.   Barker,   60  Mich.  277;  People  v.  Foley,  64  Mich.  148; 
Schneider  v.  Manning,  121  111.  376. 

2  The  State  v.  Clark,  15  S.  C.  (X.  S.)  403. 

3  State  v. -Morgan,  95  X.  C.  641. 

4  Telegraph  Co.  v.  Cooper,  71  Texas,  507. 

5  People  v.  Hare,  57  Mich.  506;  People  v.  Barker,  60  Mich.  277. 


120  EXPERT   TESTIMONY. 

attending  physicians  were  dead  at  the  time  of  trial, 
it  was  held  competent  for  the  wife  of  the  deceased  to 
state  the  declarations  made  to  her  at  the  time  by  the 
physicians  as  to  the  cause  of  death.  The  declara- 
tions made  by  them  were  in  the  ordinary  line  oi 
their  professional  duty,  and  as  such  were  receivable 
in  evidence  to  establish  the  fact  that  they  entertained 
such  opinion  as  they  stated.1 

In  a  case  in  Arkansas,  where  the  subject  of  inquiry 
was  as  to  the  cause  of  death,  the  court  considered 
the  mode  of  examination  which  should  be  pursued 
in  such  cases.  The  case  was  one  of  alleged  poison- 
ing, and  it  was  held  not  erroneous  to  ask  a  physician 
to  describe  the  symptoms  of  strychnine  in  the  human 
system,  and  stop  and  allow  the  jury  to  compare  the 
symptoms  testified  to  by  the  witness  with  those  given 
by  the  expert,  as  to  the  usual  effects  of  strychnine, 
as  affording  some  tendency  to  prove  the  manner  of 
death.  "But,"  said  the  court,  "although  not  erro- 
neous, such  a  course  of  examination  is  eminently 
unsatisfactory,  and  liable  to  mislead.  The  proper 
course  is  to  take  the  opinion  of  the  expert  upon  the 
facts  given  in  evidence,  not  as  to  the  merits  of  the 
case,  or  the  guilt  or  innocence  of  the  prisoner,  but 
as  to  the  cause  of  the  death,  so  that  the  jury  may 
first  determine  whether  any  crime  has  been  com- 
mitted by  any  one  at  all." 

In  a  case,  where  it  was  objected  that  the  physician 
who  made  the  post-mortem  examination  of  the  de- 
ceased could  not  express  an  opinion  that  death  re- 
sulted from  concussion  of  the  brain,  unless  he  had 
opened  the  head  and  examined  the  brain,  the  court 

1  McNair  v.  National  Life  las.  Co.,  20  N.  Y.  Sup.  Ct.  146.     See,  too, 
Stephen's  Dig.  of  Evidence,  Art.  27,  p.  33. 

2  Polk  v.  State,  36  Ark.  117,  124. 


NATURE    AND    SYMPTOMS    OF    DISEASE.  121 

said:  "We  are  aware  of  no  law  that  required  him 
to  open  the  skull  and  examine  the  brain  before  he 
could  be  permitted  to  express  such  an  opinion  to 
the  jury.  Of  course,  the  opinion  of  a  medical  wit- 
ness in  such  case  would  have  more  or  less  weight 
with  the  jury,  according  to  the  extent  of  the  exami- 
nation, the  professional  rank  and  character  of  the 
witness." 

§  50.  The  Nature  and  Symptoms  of  Disease. — The 
opinions  of  witnesses  skilled  in  the  science  and  prac- 
tice of  medicine,  are  admissible  as  to  the  nature  of 
the  disease  a  person  is  afflicted  with,2  and  as  to  how 
long  he  has  probably  been  afflicted  with  it.3  Their 
opinions  are  also  received  as  to  the  severity  and 
ordinary  duration  of  the  disease,4  as  well  as  to  the 
probability  of  its  recurrence,5  and  the  effects  upon 
the  general  health.6  They  are  also  permitted  to  tes- 
tify as  to  the  cause  of  the  disease  and  the  remedy  for 
it,7  and  to  describe  the  symptoms  of  any  particular 

1  Ebos  v.  The  State,  34  Ark.  520. 

2  Napier  v.  Ferguson,  2  P.  &  B.  (Xew  Bruns.)  415;  Polk  v.  State,  36 
Ark.  117,  124;  Tatum  v.  Mohr,  21  Ark.  354;  Hook  v.  Stovall,  26  Ga.  704; 
Flynt  v.  Bodenhamer,  80  N.C.  205,  208;  Jones  v.   White,  11  Humph. 
(Tenn.)  268;  Pidcock  v.  Potter,  68  Pa.  St.  342,  344;  Lush  v.  McDaniel, 

13  Ired.  (X.  C.)  485;  Washington  v.  Cole,  6  Ala.  212;  Linton  v.  Hurley, 

14  Gray  (Mass.),  191 ;  Cooper  v.  State,  23 Tex.  336,  340;  State  v.  Terrill, 
12  Rich.  (S.  C.)  321. 

8  Lush  v.  McDaniel,  13  Ired.  (X.  C.)  485;  Bennett  v.  Fail,  26  Ala.  605; 
Edington  v.  ^tna  Life  Ins.  Co.,  77  X.  Y.  564,  568;  Tatum  v.  Mohr,  21 
Ark.  354;  Eckles  v.  Bates,  26  Ala.  655. 

4  Linton  v.  Hurley,  14  Gray  (Mass.),  191;  Willey  V.Portsmouth,  35  X. 
H.  303,  308;  Jones  v.  Utica,  etc.  R.  R.  Co.,  40  Hun  (X.  Y.),  349. 

5  Filer  v.  X.  Y.  Central  R.  R.  Co.,  49  X.  Y.  42;  Tozer  v.  X.  Y.  Central 
R.  R.  Co.,  38 Hun  (X.  Y.),  100. 

6  Pidcock  v.  Potter,  68  Pa.  St.  342,  344;  Flynt  v.  Bodenhamer,  80  X. 
C-  205,  208;  Filer  v.  X.  Y.  Central  R.  R.  Co.,  49  X.  Y.  42;  Anthony  v. 
Smith,  4  Bos.  (X.  Y.)  503. 

7Matteson  v.  N.  Y.  etc.  R.  R.  Co.,  62  Barb.  (X.  Y.)  364;  Jones  v. 
Tucker,  41  X.  H.  546;  Xewton  v.  State,  21  Fla.  56;  Schneider  v.  Man- 
ning, 121  HI.  376;  McClain  v.  Brooklyn  City  R.  R.  Co.,  116  X.  Y.  459, 


122  EXPEKT    TESTIMONY. 

disease,1  explaining  its  characteristics,2  and  that  it  is 
contagious.3  An  attending  physician  may  be  asked 
whether  he  ever  saw  any  appearance  of  a  certain 
disease  in  the  family  of  a  particular  person,4  and 
whether  before  a  certain  injury  he  considered  the 
person  to  be  a  hearty  and  vigorous  man;5  and  he 
may  state  his  opinion  that  a  person's  ill-health  re- 
sulted from  a  certain  injury.6  A  physician  may  tes- 
tify as  to  the  extent  of  certain  injuries,7  whether  the 
injury  is  permanent  or  not,8  the  probability  of  re- 
covery,9 or  the  probable  results  of  the  injury.10 

In  a  case  in  New  York,  in  which  it  is  held  that 
experts  may  testify  as  to  future  consequences  which 
are  expected  to  follow  an  injury,  it  is  laid  down  that 
to  authorize  such  evidence  the  apprehended  conse- 

468;  Cooper  v.  State,  23  Tex.  336,  340;  Napier  v.  Ferguson,  2  P.  &  B. 
(New  Bruns.)  415:  Magee  v.  Cry  of  Troy,  48  Hun  (N.  Y.),  383;  Brant 
v.  City  of  Lyons,  60  Iowa,  172. 

1  Welch  v.  Brooks,  10  Rich.  (S.  C.)  124;  State  v.  Ten-ill,  12  Rich.  (S. 
C.)  321;  United  States  v.  McGlue,  1  Curtis  C.  C.  1,  9;  Napier  v.  Fergu- 
son, 2  P.  &  B.  (New  Bruns.)  415;  Pitts  v.  State,  43  Miss.  472;  People  v. 
Robinson.  2  Parker  Or.  Cas.  (N.  Y.)  236;  Lake  v.  People,  1  Parker  Cr. 
Cas.  (N.  Y.)  495. 

2  Jones  v.  White,  11  Humph.  (Tenn.)  268;  Washington  v.  Cole,  6  Ala. 
212. 

a  Moore  v.  State.  17  Ohio  St.  521,  526. 

4  Morrissey  v.  Ingham,  111  Mass.  63. 

5  Sanderson  v.  Nashua,  44  N.  H.  492. 

6  Louisville,  etc.  R.  R.  Co.  v.  Shires,  108  111.  617;  Jones  v.  Utica,  etc. 
R.  R.  Co.,  40  Hun  (N.  Y.),  349;  Matteson  v.  N.  Y.  Central  R.  R.  Co.,  35 
N.Y.487,  492. 

•  A.,  T.  &  S.  F.  R.  R.  Co.  v.  Frazier,  27  Kan.  463. 

8  Buel  v.  N.  Y.  Central  R.  R.  Co.,  31  N.  Y.  314,  320;  Filer  v.  N.  Y. 
Central  R.  R.  Co.,  40  X.  Y.  42,  46;  Peoria,  etc.  R.  R.  Co.  v.  Berry,  17 
Brad.  (111.)  47;  Magee  v.  City  of  Troy,  48  Hun  (N.  Y.),383;  Nobles- 
ville,  etc.  R.  R.  Co.  v.  Gause,  76  Ind.  142;  City  of  Goshen  v.  England, 
119  Ind.  368;  Turner  v.  City  of  Newburgh,  109  N.  Y.  301. 

9  Griswold  v.  N.  Y.  Central  R.  R.  Co.,  115  N.  Y.  61. 

10  Louisville,  etc.  R.  R.  Co.  v.  Lucas,  119  Ind.  583,  592 ;  McClain  v. 
Brooklyn  City  R.  R.  Co.,  116  N.  Y.  459,  467;  Lincoln  v.  Saratloga,  etc. 
R.  R.  Co.,  23  Wend.  425;  Abbott  v.  Dwinnell,  74  Wis.  514. 


MEDICAL  TESTIMONY  RELATING  TO  WOUNDS.       123 

quences  must  be  such  as  in  the  ordinary  course  of 
nature  are  reasonably  certain  to  ensue,  and  that  con- 
sequences which  are  contingent,  speculative,  or 
merely  possible,  cannot  be  proved.1  An  attending 
physician  who  observed  his  patient's  symptoms  may 
state  whether  such  patient  suffered  any  pain.2  But 
one  not  an  expert  could  testify  to  that  point.3  And 
a  physician  may  state  whether,  in  his  opinion,  a 
person's  arm  had  been  broken.4 

§  51.  Medical  Testimony  Relating  to  Wounds. — 
In  law  the  term  ' '  wound  ' '  is  usually  considered  to 
mean  a  breach  of  the  skin,  or  skin  and  flesh,  by  ex- 
ternal violence.  The  testimony  of  physicians  and 
surgeons  on  the  subject  is  often  of  the  very  greatest 
importance.  For  instance,  an  important  question 
frequently  arising  is  whether  a  certain  wound  was 
inflicted  before  or  after  death.  While  in  the  case 
of  incised  wounds  inflicted  immediately  after  death 
the  resemblance  is  so  close  to  wounds  inflicted  im- 
mediately before  death  that  the  two  cases  are  not 
distinguishable,  yet  if  a  few  hours  elapsed  either  be- 
fore or  after  death  before  the  infliction  of  the  wound, 
medical  testimony  can  reveal  the  fact.  If  the  wound 
was  inflcted  after  death  the  edges  of  the  wound  are 
usually  found  in  close  opposition,  there  is  compara- 
tively little  effusion  of  blood,  little  or  no  coagula 
around  the  wound,  and  no  evidence  of  repair.5  And 
so  in  the  case  of  gunshot  wounds  it  is  possible  to 
say  whether  the  discharge  took  place  near  the  body, 
in  which  case  the  injured  tissues  would  be  more  or 

1  Strohm  v.  N.  Y.  etc.  R.  R.  Co.,  96  X.  Y.  305.    See  this  case  ex- 
plained in  McClain  v.  Brooklyn  City  R.  R.  Co.,  116  X.  Y.  459,  467.    , 

2  Chicago,  etc.  R.  R.  Co.  v.  Martin,  112  111.  16. 

3  See  section  4. 

4  Johnson  v.  Central  R.  R.  Co.,  56  Vt.  708. 

5  See  Ewell's  Med.  Jour.,  p.  31. 


124  EXPERT    TESTIMONY. 

less  scorched,  blackened  or  studded  with  grains  of 
powder,  as  well  as  the  entrance  wound  larger,  ragged 
and  excavated.  So  it  is  possible  to  show  whether  a 
wound  was  caused  by  a  bullet  at  full  speed,  which 
perforates  or  penetrates,  or  whether  at  lessened 
speed,  which  crushes  and  lacerates.  And  so  it 
may  be  shown  whether  a  wound  was  produced 
by  a  sharp  instrument  drawn  across  the  part,  in 
which  case  the  edges  would  be  straight;  or  whether 
it  was  produced  by  a  blunt  instrument,  in  which 
case  the  edges  would  be  more  or  less  serrated  or  ir- 
regular. Many  other  illustrations  might  be  given 
to  show  the  importance  of  this  class  of  testimony, 
if  it  were  necessary  to  do  so.  We  will,  however,  pro- 
ceed to  a  consideration  of  the  principles  of  law 
which  have  been  established  in  reference  to  this 
class  of  testimony. 

§  52.  Who  are  Competent  to  Testify  on  the 
Subject  of  Wounds. — 1.  If  the  witness  is  a  physi- 
cian or  surgeon  he  is  not  incompetent  to  ex- 
press an  opinion,  because  of  his  want  of  obser- 
vation of  any  case  like  the  one  in  question.1 
Accordingly  a  physician  or  surgeon  who  had  never 
seen  a  wound  made  with  a  knife  or  dirk  has  been 
held  competent  to  express  an  opinion  that  the  wound 
in  question  was  made  with  a  dirk.2  In  a  similar  case 
a  similar  ruling  was  made,  the  court  declaring  that 
the  want  of  observation  of  exactly  such  a  case  as 
the  one  in  question  did  not  affect  the  competency 
of  the  witness,  though  it  might  lessen  the  credit 
given  to  his  testimony.3 

2.     And  in  accordance  with  a  principle  elsewhere 

1  See  sections  18  and  19. 

£  Mendum  v.  Commonwealth,  6  Rand.  (Va.)  704. 

3  State  v.  Clark,  12  Ired.  (X.  C.)  151, 155. 


WHO  COMPETENT  TO  TESTIFY.  125 

stated l  it  is  not  necessary  to  qualify  a  medical  wit- 
ness to  testify  as  an  expert  on  the  subject  of  wounds, 
that  he  should  have  actually  seen  the  wound  in 
question.  His  testimony  may  be  based  upon  a  de- 
scription of  the  wound  given  in  court  by  those  who 
saw  it.2 

3.  We  have  seen  that  medical  witnesses  have 
been  held  competent  to  testify  as  experts  concerning 
wounds  even  though  they  may  be  without  personal 
experience  of  like  cases.  On  the  other  hand  wit- 
nesses who  are  not  physicians  or  surgeons,  but  who 
have  had  experience  with  wounds  of  alike  nature, 
have  been  held,  in  some  cases,  incompetent  to  give 
expert  testimony  upon  the  subject.  Thus,  a  wit- 
ness who  stated  that  he  was  acquainted  with  the 
difference  in  appearance  between  gunshot  wounds 
and  wounds  made  with  a  knife  or  sharp  instru- 
ment, and  that  his  knowledge  was  derived  from  ex- 
perience and  observation,  has  been  held  incompetent 
to  express  an  opinion  whether  the  wound  in  ques- 
tion, which  he  had  seen,  had  the  appearance  of  a 
gunshot  or  pistol-shot  wound,  or  of  having  been 
made  "with  a  knife  or  sharp  instrument.3  In  a  case 
where  a  witness  stated  that  he  wras  not  a  physician 
or  surgeon,  but  had  been  an  officer  in  the  war  and 
had  seen  the  range  of  balls  in  a  good  many  gunshot 
wounds,  it  was  held  that  he  was  incompetent  to 
testify  how  the  balls  ranged.4  It  has  been  held  that  a 
non-professional  witness,  who  had  seen  the  wounded 
person,  could  describe  the  wound  as  inflamed  and 
tender  to  the  touch,  and  could  testify  that  such  per- 

1  See  section 

2  State  v.  Powell,  7  X.  J.  Law,  295;  Page  v.  State,  61  Ala.  16. 

3  Caleb  v.  The  State,  39  Miss.  721. 
*  Rash  v.  State,  61  Ala.  89. 


126  EXPERT   TESTIMONY. 

son  complained  of  stiffness  in  the  fingers,  and  in  the 
neck  and  in  the  jaws,  that  since  the  injury  the  wit- 
ness had  observed  that  the  wounded  man  could  not 
use  his  arm  as  he  could  before.1  And  in  general  it 
may  be  said  that  an  ordinary  witness  is  competent  to 
describe  the  appearance  of  a  wound  which  he  has 
seen.2  But  while  he  may  give  the  description  of  the 
wound  he  is  incompetent  to  say  how  "  it  appears  to 
have  been  made,"3  or  to  express  an  opinion  as  to  the 
direction  from  which  the  blow  came.4  And  the  opin- 
ion of  an  eye-witness  that  a  fatal  blow  was  accidental 
is  inadmissible.5 

A  gunsmith  who  for  years  had  studied  and  exper- 
imented to  ascertain  how  far  guns  and  muskets  would 
carry  shot  compactly,  and  who  stated  that  he  could 
tell  how  far  a  person  killed  by  a  charge  of  shot  from 
a  musket  must  have  been  from  the  musket  when 
it  was  fired,  was  held  competent  to  testify  to 
that  fact  as  an  expert.6  On  the  trial  of  one 
indicted  for  murder  where  a  witness  testified  that  he 
had  made  certain  experiments  upon  a  dynamometer, 
an  instrument  for  measuring  the  force  of  blows  and 
the  weight  of  falling  bodies,  by  striking  it  with  a  bat  of 
substantially  the  same  form  and  weight  as  that  with 
which  the  government  contended  the  murder  was 
committed,  it  was  held  that  the  court  might,  in  its 
discretion,  properly  reject  such  testimony,  unless  the 
experiments  were  shown  to  have  been  made  under 

1  Craig  v.  Gerrish,  58  N.  H.  513. 

2  The  People  v.  Hong  Ah  Duck,  61  Cal.  387;  McKee  v.  The  State,  82 
Ala.  32.   And  see  section  4. 

3  State  v.  Cross,  68  Iowa,  180. 

4  McKee  v.  The  State,  82  Ala.  32. 

6  State  v.  Vines,  93  N.  C.  493.    And  in  this  case  it  was  also  held  im- 
proper to  ask  the  question  of  a  medical  man. 
6  State  v.  Jones,  41  Kan.  309. 


TESTIMONY    CONCERNING    WOUNDS.  127 

conditions  the  same  as  those  existing  in  the  case  on 
trial.1 

§  53.  What  Testimony  is  Admissible  Concerning 
Wounds. — 1.  It  is  well  settled  that  medical  experts 
may  give  an  opinion  as  to  the  means  by  which  a 
wound  was  inflicted.2  Thus  a  practicing  physician 
or  surgeon  may  be  asked  his  opinion  as  to  the  kind 
of  instrument  used  in  inflicting  wounds,3  as  whether 
a  wound  was  produced  with  a  blunt  or  a  sharp  in- 
strument;4 and  whether  the  fractures  on  the  skull  of 
the  deceased,  produced  in  court,  were  caused  by 
blows  from  a  gun  shown  to  the  witness;5  also  whether 
the  skin  of  a  person's  throat  had  been  cut  by  a  sharp 
instrument,  or  torn.6  It  has  been  held  proper  to 
show  that  the  corner  of  a  hatchet's  edge,  if  held  by 
a  person  standing  in  front  of  the  deceased  while  he 
was  on  his  feet,  exactly  fitted  the  hole  in  the  skull.7 
A  surgical  expert  who  had  examined  the  wound, 
has  been  allowed  to  testify,  whether,  from  its  form 
and  appearance,  it  could  have  been  produced  by  a 
razor;8  and  whether  certain  injuries  to  the  head 
could  have  been  produced  at  the  same  time,  and 
by  one  blow;9  also  whether  the  wounds  could  have 
been  inflicted  accidentally;10  .and  whether  the  wound 

1  Commonwealth  v.  Piper,  120  Mass.  185. 

2  Williams  v.  The  State,  64  Md.  384,  392;  Territory  v.  Eagan,  3  Dak. 
119. 

3  Davis  v.  State,  38  Md.  15,  35;  State  v.  Porter,  34  Iowa,  131 ;  State  v. 
Chec  Gong,  17  Oreg.  638. 

4  State  v.  Morphy,  33  Iowa,  272. 

5  Gardner  v.  People,  6  Parker  Cr.  Cas.  155. 

6  State  v.  Clark,  12  Ired.  Law  (N.  C.),  152. 

7  Colt  v.  People,  1  Parker  Cr.  Cas.  611,  620. 

«  State  v.  Knight,  43  Me.  1, 130.  And  see  Batten  v.  The  State,  SO  Ind. 
394,  400,  where  an  expert  was  allowed  to  say  whether  intestines  were  cut 
by  a  knife. 

9  Commonwealth  v.  Piper,  120  Mass.  185. 

10  Davis  v.  State,  38  Md.  15,  37. 


128  EXPERT    TESTIMONY. 

could  have  been  produced  by  coming  in  contact 
with  a  body  of  hard  material,  where  there  were  no 
sharp  angles  or  points.1  A  physician  and  surgeon 
of  experience  with  gunshot  wounds,  may  testify 
whether  a  wound  was  inflicted  by  a  shot  from  a 
gun,2  and  he  may  explain  to  the  jury  why  the  wound 
looks  smaller  than  the  ball  which  caused  it.3  Med- 
ical experts  are  competent  to  testify,  from  the  appear- 
ance of  a  wound  through  the  hand,  whether  or  not 
it  was  made  while  the  hand  was  pressed  over  the 
muzzle  of  a  revolver.4  And  they  may  testify  as  to 
the  deadly  character  of  the  weapon  used  in  the  per- 
petration of  a  homicide;5  and  whether  a  certain 
instrument,  would,  in  the  hands  of  a  man  of  ordi- 
nary strength,  and  used  as  a  bludgeon,  produce  the 
wounds  described  and  be  likely  to  cause  death.6  In 
a  case  where  there  were  two  cuts  through  the  under 
lip  of  the  deceased  made  by  her  lower  teeth,  the 
prosecution  claiming  that  they  were  caused  by  the 
pressure  of  the  lower  lip  while  the  prisoner  was 
smothering  her,  the  defense  claiming  that  they 
might  have  been  made  by  the  deceased  while  in  a 
spasm,  a  physician  was  allowed  to  m,y  whether  they 
could  have  been  made  in  the  absence  of  some  cause 
outside  of  another  than  the  deceased  herself.7 

It  has  been  held  to  be  improper  to  ask  an  expert 
what  caused  a  wound,  the  proper  form  of  the  ques- 
tion being  to  ask  what  might  have  caused  it. 

1  State  v.  Pike,  65  Me.  Ill,  114. 

2  Rash  v.  The  State,  61  Ala.  90;  Colt  v.  The  People,!  Parker's  Cr. 
Cas.  611,  620. 

3  Schlenckerv.  The  State,  9  Xeb.  250. 
<  State  v.  Cross,  68  Iowa,  180. 

5  Banks  v.  The  State,  13  Texas  Ct.  of  App.  182. 

6  Waite  v.  The  State,  13  Texas  Ct.  of  App.  169. 

7  People  v.  Willson,  109  N.  Y.  345. 


TESTIMONY    CONCERNING   WOUNDS.  129 

What  caused  a  wound  is  a  fact  for  the  jury,  and  not 
mere  matter  of  opinion.1  In  accordance  with  this 
principle  in  a  case  where  counsel  after  stating 
hypothetically  the  condition  of  the  body  of  the  de- 
ceased, the  character  of  the  wounds,  and  other 
matters,  asked  the  witness,  who  was  a  physician, 
how  the  wounds  were  probably  made,  the  evidence 
was  held  rightly  excluded.  The  court  said:  "It 
sought  for  an  expression  of  opinion  based  upon  mat- 
ters which  were  to  be  weighed  and  considered  by 
the  jury,  and  determined  by  the  exercise  of  their 
own  judgments,  and  not  upon  the  opinion  of  an- 
other. The  matters  upon  which  the  question  was 
based  were  not  peculiarly  within  the  knowledge  of 
the  witness  or  of  the  profession  to  which  he  be- 
longed." A  similar  ruling  was  had  in  a  case  in 
Texas  when  the  following  question  was  propounded 
to  a  physician:  "What  is  your  opinion,  from  the 
examination  you  made  of  the  body,  as  to  how  the 
injury  you  saw,  to-wit:  the  arm  broken,  the  neck 
broken  and  the  skull  crushed,  was  done?"  This 
question  was  objected  to  because  "it  called  for  the 
opinion  of  the  witness  as  an  individual,  and  not  as 
an  expert;  was  mere  speculation  on  the  part  of  the 
witness,  and  was  matter  about  which  the  jury  were 
as  competent  to  judge  as  the  witness."  The  trial 
court  overruled  the  objection,  but  the  Court  of  Ap- 
peal held  that  the  objection  should  have  been  sus- 
tained upon  the  grounds  urged.3 

2.  Medical  experts  may  express  an  opinion  as  to 


1  People  v.  Hare,  57  Mich.  505. 

2  State  v.  Raiusberger,  74  Iowa,  196,  204. 

3  Steagalcl  v.  State,  24  Tex.  Ct.  of  App.  207,  214. 

(9) 


130  EXPERT   TESTIMONY. 

the  natural  and  probable  result  of  wounds,1  and  as 
to  whether  they  were  sufficient  to  cause  death.2 
Thus,  a  medical  witness  may  testify  that  a  wound 
was  necessarily  mortal.3  And  such  a  witness  may 
testify  that  he  should  expect  a  greater  injury  from  a 
direct  blow,  than  from  a  glancing  one.4  And  in  a 
case  where  a  person  has  been  bitten  in  the  thumb  by 
the  defendant  a  medical  expert  who  had  examined 
the  wound  has  been  allowed  to  state  the  tendency 
or  danger  of  that  kind  of  wound.5  Medical  experts 
have  been  allowed  to  give  their  opinion  as  to  whether 
the  effects  of  the  wound  are  permanent  in  their 
nature,6  and  as  to  the  probable  effect  of  the  wound 
on  the  general  health  of  the  injured  person,  whether 
in  consequence  of  it  he  is  liable  to  any  particular 
disease.7  The  opinion  of  an  expert  has  been  re- 
ceived as  to  which  of  two  wounds,  either  by  itself 
necessarily  fatal,  actually  caused  the  death  of  the 
deceased;8  and  as  to  the  amount  offeree  required  to 
break  a  person's  skull,  his  opinion  being  based  on 
his  familiarity  with  anatomy,  and  his  knowledge  of 


1  People  v.  Willson,  109  N.  Y.  345,  353;  Williams  v.  State,  64  Md.  384; 
Curry  v.  State,  5  Neb.  412;  State  v.  Porter,  34  Iowa,  131;  Page  v.  Stute, 
61  Ala.  16;  Kline  v.  K.  C.,  St.  J.  etc.  R.  Co..  50  Iowa,  656,  660;  State  v. 
Stoyell,  70  Me.  360;  Louisville,  etc.  R.  R.  Co.  v.  Lucas,  119  Ind.  583. 

2  Waite  v.  The  State,  13  Texas  Ct.  of  App.  169;  State  v.  Powell,  7  N. 
J.  Law,  295;  Livingston  v.  Commonwealth,  14  Gratt.  (Va.)  592;  State 
v.  Morphy,  33  Iowa,  272;  Ebos  v.  State,  34  Ark.  520;  State  v.  Jones,  68 
N.  C.  443;  State  v.  Matthews,  66  N.  C.  113. 

3  Batten  v.  The  State,  80  Ind.  394,  399. 
*  Powers  v.  Mitchell,  77  Me.  361. 

5  Rinehart  v.  Whitehead,  64  Wis.  42,  44. 

6  Wilt  v.  Vickers,  8  Watts  (Pa.),  227;  Rowell  v.  City  of  Lowell,  11 
Gray  (Mass.),  420;  Noblesville,  etc.  R.  R.  Co.  v.  Gause,  76  Ind.  142; 
Maeer  v.  Third  Avenue  R.  R.  Co.,  47  N.  Y.  Superior  Ct.  461. 

7  Montgomery  v.  Town  of  Scott,  34  Wis.  338. 
sEggler  v.  The  People,  56  N.  Y.  642. 


TESTIMONY    CONCERNING   WOUNDS.  131 

the  structure,  thickness  and  strength  of  the  human 
skull  generally.1 

3.  Medical  experts  may  express  an  opinion  as  to 
the  time  when  a  wound  was  inflicted. 

Thus,  they  may  express  an  opinion  as  to  whether 
a  wound  was  inflicted  before  or  after  death.2  And 
they  have  been  allowed  to  testify  whether  the  fract- 
ure of  a  skull  had  been  recently  made,  in  a  case 
where  the  body  was  found  six  months  after  the  per- 
son's disappearance.8 

4.  A  physician  may  give  his  opinion  as  to  the 
direction  from  which  a  blow  was  delivered.     Thus 
a  witness  who  had  made  a  post-mortem  examination 
of  the  body,  and  had  stated  that  it  enabled  him  to 
form  an  intelligent  opinion  on  the  subject,  testified 
that  the  blow  was  delivered  from  behind  and  above 
the  head  of  the  person  struck,  and  from  the  left 
towards  the  right.4     And  it  has  been  held  proper  to 
ask  a  physician  the  following  question:   "Assuming 
that  the  jury  should  believe  that  the  prisoner  and 
deceased  were  about  the  same  height,  and  that  the 
pistol  was  fired  by  the  prisoner  in  the  manner  and 
position  testified  to  by  the  State's  witnesses;  what, 
in  your  opinion,  would  have  been  the  range  of  the 
shot  after  entering  the  skull,  taking  into  considera- 
tion the  bone,  muscles  and  other  substances  in  the 
head?"       It  has,  however,  been  held  that  a  physi- 

1  Kennedy  v.  People,  39  N.  Y.  245. 

1  State  v.  Harris,  63  X.  C.  1;  Shelton  v.  State,  34  Texas,  666;  People 
v.  Willson,  109  X.  Y.  345,  353;  People  v.  Hare,  57  Mich.  506. 

3  Lindsay  v.  The  People,  63  X.  Y.  143. 

*  Hopt  v.  Utah,  120  U.  S.  431.  And  see  State  v.  Jones,  68  N.  C.  443; 
Territory  v.  Eagan,  3  Dak.  119.  But  see  McKee  v.  The  State,  82  Ala. 
32,  35. 

5  State  v.  Keene,  100  X.  C.  509.  And  see  Commonwealth  v.  Lenox,  3 
Brewster,  249. 


132  EXPERT    TESTIMONY. 

cian  or  surgeon  is  not  competent  to  express  an  opin- 
ion as  to  the  position  of  the  body  when  the  blow 
was  struck.1  And  it  has  been  held  improper  to  ask 
a  witness,  who  was  a  physician,  how  the  wounds 
upon  the  defendant  were  probably  made.  The  court 
said:  "The  matter  upon  which  the  question  was 
based  were  not  peculiarly  within  the  knowledge  of 
the  witness  or  of  the  profession  to  which  he  be- 
longed."2 

For  the  purpose  of  explaining  and  rendering 
his  evidence  intelligible  to  the  jury,  an  expert 
may  be  allowed,  in  describing  wounds,  to  make  use 
of  plates  and  diagrams,  although  not  claimed  to  be 
strictly  accurate,  and  not  intended  to  be  used  as 
evidence.3 

*  In  the  trial  of  a  person  indicted  for  murder, 
counsel  for  the  prisoner  insisted  that  experts 
should  have  been  summoned  to  show  that  the 
wound  inflicted  was  dangerous,  or  mortal,  or  caused 
death.  The  court  held  that  no  such  testimony  was 
necessary,  as  it  appeared  that  the  deceased  was  a 
strong  and  apparently  healthy  man,  who  took  to  his 
bed  immediately  after  the  wound,  suffered  intensely 
for  two  days,  and  then  died.* 

§  54.  Detection  of  Poison  by  Experts. — In  En- 
gland, in  1530,  the  offense  of  poisoning  was  made 
high  treason,  and  offenders  were  excluded  from  ben- 
efit of  clergy  and  were  to  be  boiled  to  death.  This 
was  not  alone  due  to  the  fact  that  of  all  species  of 
death  that  by  poison  was  considered  the  most  de- 
testable as  being  of  all  others  the  most  difficult  to 

1  Kennedy  v.  The  People,  39  N.  Y.  245,  256. 

2  State  v.  Rainsbarger,  74  Iowa,  196,  201. 
8  State  v.  Knight,  43  Me.  1,  130. 

4  State  v.  Murphy,  9  Xev.  394. 


DETECTION    OF    POISON   BY    EXPERTS.  133 

prevent  by  courage  or  forethought,  but  it  was  be- 
cause, in  the  state  of  knowledge  that  then  existed, 
it  was  impossible,  by  chemical  analysis,  to  determine 
the  presence  of  the  poisonous  substance  in  the  human 
body.  At  the  present  time,  however,  there  is  thought 
to  be  no  poison  accessible  to  the  public  which  can- 
not be  detected  by  modern  methods  of  research,1  al- 
though it  may  not  be  possible  to  find  it  actually 
present  in  the  body  in  alf  cases.  The  time  within 
which  it  is  possible  to  detect  the  presence  of  the 
poison  in  the  body  depends,  of  course,  on  the  nature 
of  the  poison  employed.  In  the  case  of  metallic 
poisons  there  is  probably  no  limit  to  the  time  within 
which,  after  the  demise  of  the  patient,  their  presence 
may  not  be  discovered.  Some  of  the  vegetable 
poisons,  on  the  other  hand,  are  so  volatile  that  in  a 
short  time  they  entirely  disappear.  Thus  a  standard 
medical  writer  declares  of  prussic  acid:  "Assuming 
that  a  small  but  fatal  dose  has  been  administered, 
and  that  the  dead  body  has  been  exposed  or  buried 
for  a  few  weeks,  it  is  not  probable  that  any  of  the 
poison  would  be  found  by  chemical  analysis.  The 
odor  may  entirely  disappear  in  a  week,  and  the 
longest  period  at  which  the  poison  itself  has  been 
found  in  the  body  is  seventeen  days."  The  same 
writer  also  gives  instances  of  poisoning  by  opium, 
when  it  has  been  impossible  to  find  a  trace  of  meconic 
acid  or  of  morphine  in  the  contents  of  the  stomach. 
And  he  states  that  "it  may  be  set  down  as  the  ex- 
ception to  the  rule  to  find  this  poison  in  the  dead 
body."3  On  the  other  hand,  arsenic  has  been  de- 


1 1  Cr.  Law  Ma».  294,  article  by  R.  Ogden  Doremus,  M.  D.,  LL.D. 

2  Taylor  on  Poisons,  p.  603. 

3  Ibid.  p.  554. 


134  EXPERT    TESTIMONY. 

tected  ten  years  after  the  death  of  the  victim.1  But 
it  is  not  always  necessary  to  find  poison  in  the  body 
to  determine  that  death  was  caused  by  poison.  That 
fact  may  appear  from  the  symptoms  preceding  death, 
and  from  the  appearance  of  the  body  and  the  condi- 
tion of  the  organs.2 

Experts  are,  of  course,  allowed,  after  having  made 
a  chemical  analysis,  to  testify  as  to  the  presence  of 
poison  in  the  stomach  or  internal  organs  of  the 
body.3 

When  it  is  claimed  that  death  resulted  from  the 
administration  of  poison,  the  expert  testimony  may 
be  both  chemical  and  medical.  But  an  expert  in 
one  of  these  branches  is  not  necessarily  an  expert  in 
the  other/ 


1  Ibid.  374. 

2  "It  is  now  a  well  known  and  admitted  fact,  that  a  person  may  die 
from  poison,  and  no  poison  be  found  by  chemical  analysis  in  the  body. 
There  is  a  popular  but  erroneous  notion  that,  if  poison  cannot  be  pro- 
duced from  a  dead  body  in  a  visible  and  tangible  form,  then,  supposing 
proper  skill  to  have  been  employed,  the  only  inference  to  be  drawn  is, 
that  no  poison  was  taken,  and  that  death  was  caused  by  disease.    This 
would  be  bringing  the  question  of  death  from  poison  to  a  very  simple 
issue  indeed.    It  would  be  casting  aside  physiology  and  pathology,  and 
requiring  oui  law  authorities  to  place  entire  and  exclusive  confidence  in 
the  crucible  and  test-tube  of  the  chemist,     *     *     *    the  allegation  that 
no  person  can  die  from  poison,  except  the  poison  be  found  in  the  body, 
is  a  mockery,  a  delusion  and  a  snaie,  admirably  adapted  to  cover  a 
multitude  of  secret   deaths  from  poison,  which,  but  for  this  dogma, 
might  be  revealed  by  pathology  &nd  physiology.    It  is  all  the  more 
dangerous,  because  the  history  of  crime  shows  us  that  the  arts  of  the 
murderer,  especially  of  the  scientific  or  professional  murderer,  are  daily 
becoming  more  refined.    I  might  add  largely  to  the  list  of  poisons  which 
either  by  their  nature,  by  their  tremendous  power  in  very  small  doses, 
or  by  the  mode  in  which  they  are  introduced  into  the  system,  would 
infallibly  produce  death  without  leaving  a  physical  or  chemical  trace  of 
their  presence  in  the  body."    Taylor  on  Poisons,  p.  170. 

3  State  v.  Bowman,  78  N.  C.  509,  510. 

4  People  v.  Millard,  53  Mich.  63,  74. 


ANALYSIS    OF    POISON    NOT   NECESSARY.  135 

§  55.  Who  are  Experts  in  the  Detection  of  Poi- 
sons.— 1.  A  chemist  who  has  made  an  analysis  of  a 
substance  may  testify  as  to  its  ingredients.1 

2.  A  chemist  and  toxicologist,  although  he  is  not 
a  physician  or  surgeon,  can  testify  as  to  the  effect  of 
a  certain  poison  on  the  human  system.2 

3.  A  physician  may  testify  as  to  the  effect  of  cer- 
tain poisons  on  the  human  system.3 

For  example,  he  may  testify  as  to  the  symptoms 
which  appear  upon  the  administration  of  any  partic- 
ular poison.4  And  he  may  state  that  in  his  opinion 
death  was  caused  by  the  administration  of  poison.5 
In  the  case  last  cited  the  physician,  after  describing 
the  symptoms,  gave  his  opinion  that  death  resulted 
from  arsenic,  but  that  he  would  not  have  formed 
such  an  opinion  had  he  not  been  informed  there  was 
arsenic  in  the  house;  that  learning  that  fact  he 
reached  his  conclusion  from  observation  of  the  symp- 
toms of  the  case. 

4.  The  right  of  a  physician  to  testify  as  to  the  re- 
sult of  a  chemical  analysis  has  been  recognized,6  but 
the  mere  fact  that  he  is  a  physician  does  not  alone 
qualify  him  to  give  evidence  as  an  expert,  when  the 
question  is  as  to  the  contents  of  the  human  stomach 
as  revealed  by  a  post-mortem  examination  with  the 
view  of  ascertaining  the  presence  of  arsenic.7 

§  56.  Chemical  Analysis  of  Poison  not  Necessary, 
When. — It  is  held  that  it  is  not  always  essential  that 

1  Commonwealth  v.  Hobbs,  140  Mass.  443;  Commonwealth  v.  Ken- 
drick,  147  Mass.  444. 

2  The  State  v.  Cook,  17  Kan.  392. 

s  The  State  v.  Terrill,  12  Rich.  (S.  C.)  321. 

4  People  v.  Robinson,  2  Parker's  Cr.  Cas.  236;  Polk  v.  State,  36  Ark. 
117,124. 

5  Mitchell  v.  State,  58  Ala.  418. 

6  State  v.  Hinkle,  6  Iowa,  380. 

7  State  v.  Cole,  63  Iowa,  695.    And  see  section  57. 


136  EXPERT    TESTIMONY. 

there  should  be  a  chemical  analysis  of  a  mixture,  in 
order  to  qualify  an-  expert  to  express  an  opinion  as 
to  its  ingredients,  and  to  its  being  a  poison.1  In  the 
case  cited,  which  was  the  trial  of  a  prisoner  indicted 
for  administering  a  poisonous  drug,  a  bottle  was 
produced  and  shown  to  a  medical  expert  which  con- 
tained the  mixture  administered  by  the  defendant; 
he  stated  that  he  had  made  no  chemical  analysis  of 
its  contents,  but  thought  he  could  tell  its  ingredients 
from  its  smell,  taste  and  appearance.  He  was 
allowed  to  give  an  opinion  as  to  what  the  mixture 
was  composed  of,  its  effect  upon  a  woman  in  preg- 
nancy when  taken,  and  the  danger  to  life. 

§  57.  Chemical  Analysis  of  Contents  of  Stomach. 
— In  a  case  of  poisoning,  chemical  tests  and  an 
analysis  of  the  contents  of  the  stomach  and  bowels 
are,  as  a  rule,  essential  to  the  ascertainment  of  the 
truth,  and  should  be  resorted  to  in  cases  where  there 
is  no  direct  proof  of  the  act.  Symptoms  of  them- 
selves, without  other  circumstances  are  said  to  be 
unreliable,  and  to  afford  inconclusive  evidence  of 
guilt.2  There  are  cases  in  which  it  is  very  difficult, 
and  even  impossible  to  discriminate  with  certainty 
during  life  between  poisoning  and  ordinary  disease, 
and  with  few  exceptions  the  morbid  appearances 
left  by  poison  upon  a  corpse  do  not  differ  essen- 
tially from  those  that  attend  natural  diseases,  or 
some  kinds  of  violent  death.  The  most  satisfactory 
evidence  of  poisoning,  therefore,  consists  in  the 
isolation  of  some  particular  poison  from  the  tissues, 
or  from  the  secretion  or  matter  ejected  from  the 
body.  In  cases  of  suspected  poisoning,  the  chem- 


1  State  v.  Slagh,  83  N.  C.  630. 

2  Joe  v.  The  State,  6  Fla.  591. 


ANALYSIS    OF    CONTENTS    OF    STOMACH  137 

ical  analysis  should,  if  possible,  be  made  by  an  ex- 
perienced chemist  rather  than  by  a  general  medical 
practitioner. 

But  in  cases  where  the  opinions  of  experts  are  to 
be  received  as  to  the  chemical  contents  of  the 
stomach  and  bowels,  there  should  be  preliminary 
proof  of  the  identity  of  the  stomach  and  its  contents 
and  that  the  same  have  not  been  improperly  tam- 
pered with.  Such  proof  should  be  submitted,  and 
passed  upon  by  the  court,  before  the  opinions  of  the 
experts  are  received.1  But  in  a  case  where  an  ex- 
pert chemist  was  allowed,  over  objection,  to  testify 
as  to  the  result  of  his  examination  of  the  contents 
of  a  stomach  which  had  been  submitted  to  him  for 
analysis,  before  this  preliminary  proof  had  been 
made,  it  was  held  that  no  error  had  been  committed, 
such  proof  having  been  afterwards  submitted.  At 
the  time  the  objection  was  raised  counsel  had  stated 
that  he  would  afterwards  establish  by  a  witness  not 
then  in  the  court-house,  the  identity  of  the  contents 
of  the  stomach  analyzed  as  the  stomach  of  the  de- 
ceased.2 

It  is,  of  course,  necessary  that  the  evidence 
should  show  that  the  stomach  taken  from  the  de- 
ceased was  the  identical  stomach  whose  contents 
were  analyzed,  and  that  no  foreign  substance  could 
have  been  introduced  into  the  stomach,  or  into  its 
contents,  subsequent  to  the  death  of  the  deceased 
and  prior  to  the  chemical  analysis.  But  it  is 
not  necessary  that  the  stomach  should  be  kept  con- 
tinuously under  lock  and  key  from  the  time  it  is 
taken  from  the  body  of  the  deceased  until  the  final 

1  The  State  v.  Cook,  17  Kan.  394. 

2  Johnson  v.  The  State,  20  Texas  Ct.  of  App.  178. 


138  EXPERT    TESTIMONY. 

analysis,  or  that  it  should  be  kept  continuously 
sealed  up.  And  it  is  not  necessary  that  all  possi- 
bility of  its  being  tampered  with  should  be  ex- 
cluded.1 

Not  only  may  the  testimony  of  professional  chem- 
ists be  received,  but  the  opinions  of  practicing 
physicians  who  are  not  professional  chemists,  have 
been  received  as  to  the  analysis  of  the  stomach, 
and  the  tests  usually  applied  for  detecting  poison 
in  such  cases.  Although  the  opinions  of  those  who 
are  not  practical  chemists  are  entitled  to  less  weight 
than  those  given  by  that  class  of  experts  whose 
conclusions  are  based  upon  experience  as  well  as 
books.2 

§  58.  Order  of  Research  in  Analysis  for  Poison. — 
In  the  analysis  of  a  poison  it  is  essential  that 
the  toxicologist  should  have  followed  a  scientific 
order  of  research,  as  otherwise  it  is  quite  possible 
for  him  to  fail  to  discover  the  presence  of  the  poison. 
It  is  important  for  counsel  in  the  examination  of 
such  witnesses  to  bear  this  fact  in  mind,  and  we, 
therefore,  append  this  order  of  research.  The  ex- 
amination should  be: 

1  See  State  v.  Cook,  17  Kan.  392,  395. 

2  State  v.  Hinkle,  6  Iowa,  380.    In  this  case  the  opinions  of  two  prac- 
ticing physicians  were  received.    One  of  them  stated  that  he  was  not  a 
professional  chemist,  but  understood  some   of  the  practical  details  of 
chemistry — that  portion  at  least  which  belonged  to  his  profession;  that 
he  had  no  practical  experience  in  the  analysis  of  poisons  until  he 
analyzed  the  contents  of  the  stomach  of  the   deceased ;  that  he  was 
previously  acquainted  with  the   means  of  detecting  poisons,  and  had 
since  had  some  experience  in  that  way.    The  other  declared  that  he 
was  not  a  practical  chemist,  but  understood  the  chemical  tests  by  which 
the  presence  of  poison  could  be  detected ;  that  he  had  never  experi- 
mented with  the  view  of  detecting  strychnine  by  chemical  tests,  but 
that  he  had  seen  experiments  by  professors  of  chemistry,  and  that  there 
was  one  test  much  relied  on,  the  trial  of  which  he  had  witnessed.     And 
see  section  55. 


TESTIMONY    ON    SUBJECT    OF    BLOOD.  139 

1.  For  the  volatile  poisons,  such  as  hydrocyanic 
acid,  chloroform,  ether,  etc.      These  poisons  being 
most  liable  to  escape  detection,  as  they  may  be  lost 
by  evaporation. 

2.  For  the  vegetable  poisons,  such  as  strychnine, 
morphia,  belladonna,  etc.,  as  the  tests  employed  for 
the  detection  of  mineral  poisons  are  often  destruc- 
tive of  the  vegetable  poisons. 

3.  For  the  various   acids,  alkalies,  metallic  poi- 
sons, etc.1 

§  59.  Expert  Testimony  on  the  Subject  of  Blood. 
— When  marks  of  blood  are  found  on  the  clothing 
or  weapons  of  an  accused  person,  it  is  not  unusual 
to  find  him  accounting  for  the  same  with  a  claim 
that  he  has  been  engaged  in  butchering  cattle, 
killing  a  pig,  or  handling  game.  In  such  cases  it 
becomes  important  to  know  the  character  of  the 
blood  for  the  purpose  of  determining,  if  possible, 
the  truth  or  falsity  of  his  explanation. 

It  appears,  that  the  fluid  of  the  blood  contains  a 
large  number  of  corpuscles.  Science  counts  and 
measures  them,  and  it  is  commonly  held  that  the 
blood  of  an  adult  man  contains  5,000,000  red  cor- 
puscles in  each  cubic  millimetre.  The  average 
diameter  of  the  human  red  corpuscle  is  still  a  sub- 
ject of  discussion.  Gulliver,  however,  states  that 
the  average  size  in  both  sexes  is  Booths  of  an  inch, 
while  Taylor  states  it  to  be  ssVoths  of  an  inch. 
Welcker,  a  recognized  authority  on  the  continent, 
gives  .00774  m  m.  as  the  average  breadth  in  the 
human  male,  and  Elsberg,  nearly  agreeing  with 
Wolcker,  fixes  the  mean  diameter  of  the  red  corpus- 
cle at  .0075  m  m.  Human  corpuscles  are  then  to 

1  See  1  Or.  Law  Mtig.  309. 


140  EXPERT    TESTIMONY. 

be  compared  with  the  corpuscles  of  the  animals. 
Gulliver  gives  the  average  in  the  dog  as  a^Vo; 
in  the  hare  as  WOT;  in  the  mouse  3-rrr;  in  the  ass 
ToW;  in  the  pig  T^Vo;  in  the  ox  trr<n',  in  the  cat 
4Tcro;  in  the  horse  oVo;  in  the  sheep  saVo;  in  the 
goat  63i>6.  Satterthwaite,  a  recent  writer  on  histol- 
ogy, gives  the  following  averages:  Dog,  .0073  mm.; 
cat,  .0065mm.;  rabbit,  .0069mm.;  sheep,  .0050 
m  m.;  goat,  .0041  m  m.;  elephant,  .0094  m  m.; 
pigeon,  .0147  m  m.;  chicken,  .0121  m  m.;  duck, 
.0129  m  m.  It  will  be  seen  that  there  is  little  vari- 
ation between  the  corpuscles  of  human  blood  and 
those  of  the  dog,  the  cat  and  the  rabbit;  while  there 
is  a  considerable  variation  between  it  and  that  of 
the  elephant,  the  pigeon,  the  chicken  and  the  duck.1 
It  is  possible,  therefore,  for  science  in  some  cases 
to  show  whether  the  story  of  the  accused  is  true  or 
not.  How  valuable  the  testimony  may  be  will  de- 
pend on  the  circumstances  of  the  particular  case — 
on  the  blood  to  be  compared — and  on  the  manner 
in  which  the  expert  has  done  his  work.  On  this 
latter  point  attention  may  properly  be  called  to  the 
following  extract  from  a  recognized  authority  on 
histology: 

"Measurements  of  single  corpuscles  have  no  value 
in  determining  the  particular  animal  from  which  the 
blood  has  been  obtained,  and  this  is  an  object  of 
prime  importance  in  medico-legal  cases.  It  is  com- 
mon, therefore,  to  make  a  hundred  or  more  single 
measurements,  and  then  take  the  average  of  them. 
And  yet  this  figure  may  vary  considerably  in  different 
individuals,  or  even  in  the  same  one.  In  the  blood 


1  See   Satterthwaite's  Manual  of  Histology,  ch.  Ill;  Taylor's  Med. 
JUT.  p.  307. 


TESTIMONY    ON    SUBJECT    OF   BLOOD.  141 

of  the  puppy,  for  instance  (the  size  of  the  dog's  cor- 
puscle being  very  nearly  that  of  a  man's),  a  recent 
observer  found  that  the  average  diameter  of  fifty 
corpuscles  varied  only  two  millionth  of  an  inch  from 
a  like  average  of  fifty  taken  from  his  own  blood.  In 
another  instance,  taking  forty  from  a  puppy,  he  found 
that  the  average  differed  only  seven  millionth  of  an 
inch  from  a  similar  average  of  his  own."1 

Again,  an  important  element  seems  to  be  whether 
the  blood  measured  was  recent  or  dried.  And 
another  writer  on  this  subject  says: 

"When  blood  is  dried  on  clothing,  and  it  is  neces- 
sary to  extract  the  corpuscles  by  means  of  a  liquid 
of  a  different  nature  from  the  serum,  we  cannot  rely 
on  slight  fractional  differences,  since  we  cannot  be 
sure  that  the  corpuscles,  after  having  been  once 
dried,  will  ever  acquire,  in  a  foreign  liquid,  the  exact 
size  which  they  had  in  serum.  Medical  evidence 
must,  therefore,  be  based,  in  such  cases,  on  mere 
speculation.  *  *  * 

There  are  no  certain  methods  of  distinguishing 
microscopically,  or  chemically,  the  blood  of  a  human 
being  from  that  of  an  animal,  when  it  has  been  once 
dried  on  an  article  of  clothing. ' ' 

Persons  accustomed  to  make  chemical  and  micro- 
scopic examination  of  blood  and  blood  stains,  "are, 
of  course,  allowed  to  testify  whether  human  blood 
can  be  distinguished  from  animal  blood,  and,  if  so, 
whether  a  particular  blood  stain  was  made  by  human 
or  animal  blood.3  Such  evidence  has  been  received 
in  numerous  cases,  and  without  objection. 

1  Satterthwaite's  Manuel  of  Histology,  p.  36. 

2  Taylor's  Med.  Jur.  p.  307. 

3  See  Commonwealth  v.  Sturtivant,  117  Mass.  122, 124;  State  v.  Knight, 
43  Me.  1,  133;  Knoll  v.  The  State,  55  Wis.  249. 


142  EXPERT   TESTIMONY. 

An  expert  may  illustrate  his  testimony  touching 
the  properties  of  human  blood,  as  ascertained  by 
chemical  tests  and  microscopic  observation,  by  the 
use  and  exhibition  to  the  jury  of  a  diagram.  "It 
would  be  very  difficult  for  an  expert  of  the  most 
accurate  and  extensive  observation,  to  exhibit  in  lan- 
guage with  precision,  so  as  to  be  understood,  those 
delicate  appearances  which  are  appreciable  only  by 
the  sense  of  vision.  Nothing  short  of  an  exact  rep- 
resentation to  the  sight  can  give  with  certainty  a 
perfectly  correct  idea  to  the  mind.  *  *  *  A 
diagram  approximating  in  any  degree  to  perfect  rep- 
resentation, when  exhibited  by  one  qualified  from 
knowledge  and  experience  to  give  explanations,  may 
do  much  to  make  clear  his  testimony  without  danger 
of  misleading."1 

In  a  criminal  trial  it  would  seem  to  be  proper 
that  the  prisoner  should  be  allowed  to  have 
the  articles,  which  the  prosecution  allege  to  be 
smeared  with  blood,  examined  by  his  own  experts. 
After  such  articles  have  been  offered  in  evidence  by 
the  government,  they  are  placed  in  the  special 
custody  of  the  court,  to  be  dealt  with  as  justice  re- 
quires. Then,  if  the  prisoner  desires  an  examina- 
tion to  be  made  by  his  experts,  it  should  be  allowed 
under  proper  precautions.  As  Mr.  Justice  LUDLOW 
has  expressed  it,  "the  court  should  see  to  it  that  they 
are  guarded  from  intentional  or  accidental  injury, 
with  the  most  scrupulous  care,  and  they  may  be  ex- 
amined in  open  court  by  any  persons  selected  by  the 
prisoner  or  his  counsel,  or  if,  from  necessity,  the  ex- 
amination cannot  be  made  accurately  in  open  court, 
they  should  be  placed  in  the  hands  of  any  respect- 

1  The  State  v.  Kuight,  43  Me.  1. 


TESTIMONY    AS    TO    BLOOD    STAIXS.  143 

able  chemist  or  physician  to  be  selected  by  the 
prisoner,  with  the  consent  of  the  court.  They  should 
be  properly  identified  as  the  very  articles  offered  in 
evidence  by  the  Commonwealth  before  they  are  de- 
livered to  the  person  who  has  been  selected  by  the 
prisoner's  counsel,  and  for  this  purpose,  that  person 
should  receive  them  in  open  court,  and  they  should 
then  be  examined  in  the  presence  of  an  officer  or 
officers  of  the  court."1 

§  60.  Whether  Ordinary  Witnesses  may  Testify  as 
to  Blood  stains. — But  it  has  been  made  a  question 
in  several  cases,  whether  ordinary  witnesses  may 
testify  as  to  blood  stains,  it  being  objected  that  no 
one  but  a  chemist  is  qualified  to  state  whether  stains, 
apparently  made  by  blood,  are  really  blood  stains 
or  not.  We  cannot  find  that  such  an  objection  has 
been  sustained  in  a  single  instance.  And  the  rule 
is,  that  ordinary  witnesses  are  competent  to  testify 
that  they  observed  spots  of  blood  upon  the  clothing, 
etc.,  and  no  chemical  analysis  of  the  substance  sup- 
posed to  be  blood  is  necessary.2  "The  testimony  of 
the  chemist  who  has  analyzed  blood,  and  that  of 
the  observer  who  has  merely  recognized  it,  belong 
to  the  same  legal  grade  of  evidence;  and  though  the 
one  may  be  entitled  to  much  greater  weight  than 
the  other  with  the  jury,  the  exclusion  of  either  would 
be  illegal.  *  *  Either  party  in  the  present  case 
had  the  right  to  resort  to  microscopic  or  chemical 
tests,  but  neither  was  bound  to  do  it,  and  neither 
can  complain  of  the  other  for  the  omission. 
The  affairs  of  life  are  too  pressing  and  manifold  to 
have  everything  reduced  to  absolute  certainty,  even 

1  Commonwealth  v.  Tvvitchell,  1  Brewster  (Pa.),  562. 
2Dillard  v.  State,  58  Miss.  368,386;  People  v.  Greenfield,  30  X.  Y. 
Sup.  Ct.  462;  s.  C.,  85  X.  Y.  75.    People  v.  Deacons,  109  X.  Y.  374. 


144  EXPERT    TESTIMONY. 

in  the  administration  of  justice.  *  *  Microscopes, 
chemists  and  men  of  science  are  not  always  at  hand, 
and  criminals  are  neither  anxious  to  court  observa- 
tion, nor  careful  to  preserve  the  evidences  of  their 
guilt."  But  the  question  whether  the  blood  is 
human  blood  or  the  blood  of  an  animal,  would  seem 
to  be  one  of  science  requiring  the  testimony  of  ex- 
perts.2 

§  61.  Blood  Stains — Proper  Question  Concerning. 
—  It  is  sometimes  very  important  to  determine 
whether  blood  stains  upon  clothing  were  occasioned 
by  blood  flowing  upon  the  outer,  or  upon  the  inner 
surface  of  the  fabric.  If  caused  by  blood  flowing 
directly  upon  the  outer  surface  of  the  fabric,  the 
coloring  matter  of  the  blood,  Avhich  is  suspended  in 
the  blood,  will,  of  course,  remain  on  the  outer  sur- 
face, whereas  it  would  be  on  the  inner  surface  of 
the  garment  if  it  came  from  within.  It  is  held, 
therefore,  that  one  who  is  qualified  by  chemical  ob- 
servations and  experiments,  may  testify  whether  a 
blood  spot  upon  a  garment  could  have  been  occa- 
sioned by  blood  flowing  directly  upon  the  outer  sur- 
face thereof.3  And  an  expert  may  testify  as  to  the 
direction  from  which  a  blood  stain  came,  as,  for 
instance,  that  it  came  from  below  upwards.*  But 
in  a  case  in  Mississippi,  where  it  was  proposed  to 
ask  the  experts  to  give  their  opinions  as  to  the  rela- 
tive positions  of  the  combatants  at  the  time  of  the 
difficulty,  as  indicated  by  blood  upon  the  shirt,  with 
a  view  of  showing  by  the  blood  marks  that  the 
prisoner  was  probably  prostrate  on  the  ground,  and 

1  People  v.  Deacons,  109  N.  Y.  374. 

People  v.  Ganzalez,  35  N.  Y.  49,  61. 
8  State  v.  Knight,  43  Me.  1, 133. 
4  Commonwealth  v.  Sturtivant,  117  Mass.  122. 


OPINIONS    IN    MISCELLANEOUS    CASES.  145 

deceased  on  top  of  him  when  the  stains  on  the  shirt 
were  received,  the  question  was  excluded  upon  the 
ground  that  it  did  not  involve  any  matter  of  science 
or  skill,  and  that  the  jury  must  judge  for  them- 
selves.1 

§  62.  Miscellaneous  Cases  in  which  the  Opinions 
of  Chemists  have  been  Received. — A  chemist  has  been 
permitted  to  testify  as  to  the  safet}r  of  camphene 
lamps.2  In  this  case  the  witness  was  held  compe- 
tent to  express  an  opinion  as  to  the  safety  of  the 
lamp,  although  he  had  never  experimented  with 
lamps,  or  made  or  used  camphene,  or  paid  any  par- 
ticular attention  to  camphene  lamps,  but  it  appeared 
that  he  had  studied  chemisty  with  a  distinguished 
chemist;  that  he  was  himself  an  instructor  in  chem- 
istry, and  acquainted  with  gases,  having  experi- 
mented with  them,  and  also  knew  how  camphene 
was  made.  And  in  an  action  which  involved  the 
question  whether  a  certain  fertilizer  was  merchant- 
able and  reasonably  suited  to  the  use  intended,  the 
opinion  of  a  chemist,  who  had  made  an  analysis  of 
the  fertilizer,  was  considered  competent  evidence, 
although  not  conclusive  as  to  the  suitableness  of  the 
fertilizer  for  the  use  intended.3  So  in  an  action  to 
recover  damages  for  injury  to  land  by  working  a 
copper  mill  producing  noxious  gases,  from  which 
poisonous  substances  are  discharged,  the  testimony 
of  experts  has  been  received,  showing  that  they  had 
made  experiments  with  gases  taken  from  the  land, 


1  Dillard  v.  State,  58  Miss.  368,  387. 

2  Bierce  v.  Stocking,  11  Gray  (Mass.),  174. 

3  Wilcox  v.  Hall,  53  Ga.  635.  See,  too,  Gossler  v.  Eagle  Sugar  Refinery , 
103  Mass.  331,  that  certain  sugar  contained  3  per  cent,  of  sand. 

(10) 


146  EXPERT    TESTIMONY. 

by  means  of  which  they  had  obtained  copper.1  The 
testimony  of  a  chemist  has  been  received,  that  the 
point  of  drainage  of  surrounding  lands  by  a  filter 
basin,  on  land  taken  for  that  purpose,  could  be  de- 
termined, and  it  has  been  held  proper  to  ask  him 
whether  the  level  had  been  determined  by  experi- 
ment, at  wrhich  water  stood  under  soil  generally, 
and  that  he  could  state  the  results  of  experiments 
made  by  him  in  his  laboratory  in  proving  that  fact.2 
A  chemist  might  properly  be  asked  as  to  the  proba- 
bility of  spirits  evaporating  while  undergoing  trans- 
portation in  certain  casks.3  The  opinions  of  chemists 
are,  of  course,  received  as  to  the  constituent  parts 
of  a  compound.4  We  have  elsewhere  considered  the 
admissibility  of  the  opinions  of  chemists  as  to  the 
nature  of  inks,  and  the  age  of  writing,  in  cases  in- 
volving the  genuineness  of  handwriting.5 

§  63.  Expert  Testimony  on  the  Subject  of  Hair. — 
The  question  whether  certain  hair  is  human  hair  or 
not  sometimes  becomes  a  question  of  great  impor- 
tance on  trials  for  homicide.  The  opinion  of  a 
microscopist  would  certainly  be  received  as  to 
whether  the  hair  in  question  was  human  or  not. 
And  a  witness  possessing  no  special  qualifications 
has  been  allowed  to  express  such  an  opinion.6 

A  trial  occurred  about  1850  at  Norwich,  England, 
the  circumstances  of  which  are  given  as  follows  : 
"  A  female  child,  nine  years  old,  was  found  lying  on 
the  ground  in  a  small  plantation,  quite  dead,  with 

1  Lincoln  v.  Taunton  Manuf.  Co.,  9  Allen  (Mass.),  182.  See,  too,  Salvin 
v.  North  Brancepeth  Coal  Co.,  9  Ch.  App.  (L.  K.)  705. 
*  Williams  v.  Taunton,  125  Mass.  34. 

3  Turner  v.  The  Black  Warrior,  1  McAHster,  181,  184. 

4  Allen  v.  Hunter,  6  McLean,  303,  310. 

5  See  Chapter  VI. 

6  Commonwealth  v.  Dorsey,  103  Ma?s.  412. 


EXPERT    TESTIMONY    AS    TO    HAIR.  147 

a  large  and  deep  gash  in  the  throat.  Suspicion  fell 
upon  the  mother  of  the  murdered  girl,  who,  upon 
being  taken  into  custody,  behaved  with  the  utmost 
coolness,  and  admitted  having  taking  her  child  to 
the  plantation  where  the  body  was  found,  whence 
the  child  was  lost  in  quest  of  flowers.  Upon  being 
searched,  there  was  found  in  the  woman's  posses- 
sion a  large  and  sharp  knife,  which  was  at  once  sub- 
jected to  a  minute  and  careful  examination.  Noth- 
ing, however,  was  found  upon  it,  with  the  exception 
of  a  few  pieces  of  hair  adhering  to  the  handle,  so 
exceedingly  small  as  scarcely  to  be  visible.  The 
examination  being  conducted  in  the  presence  of  the 
prisoner  and  the  officer  remarking,  'Here  is  a  piece  of 
fur  or  hair  on  the  handle  of  your  knife,'  the  woman 
immediately  replied,  'Yes,  I  dare  say  there  is,  and 
very  likely  some  stains  of  blood,  for  as  I  came  home 
I  found  a  rabbit  caught  in  a  snare,  and  I  cut  its 
throat  with  a  knife.'  The  knife  was  sent  to  London, 
and,  with  the  particles  of  hair,  subjected  to  a  micro- 
scopic examination.  No  trace  of  blood  could  at  first 
be  detected  upon  the  weapon,  which  appeared  to  have 
been  washed:  but  upon  separating  the  horn  handle 
from  its  iron  lining  it  was  found  that  between  the 
two  a  fluid  had  penetrated  which  turned  out  to  be 
blood — certainly  not  the  blood  of  a  rabbit,  but 
bearing  every  resemblance  to  that  of  the  human 
body.  The  hair  was  then  submitted  to  examination. 
Without  knowing  anything  of  the  facts  of  the  case, 
the  microscopist  immediately  declared  the  hair  to 
be  the  hair  of  a  squirrel.  Now,  round  the  neck  of 
the  child  at  the  time  of  the  murder  there  was  a  tip- 
pet or  'victorine,'  over  which  the  knife,  by  whom- 


148  EXPERT   TESTIMONY. 

ever  held,  must  have  glided,  and  this  victorine  was 
of  squirrel's  fur. 

This  strong  circumstantial  evidence  of  the  guilt 
of  the  prisoner  was  deemed  by  the  jury  sufficient 
for  a  conviction,  and  Avhilst  awaiting  execution  the 
wretched  woman  fully  confessed  her  crime." 

In  the  famous  Cronin  case,  recently  tried  in 
Chicago,  expert  testimony  on  the  subject  of  hair 
was  received,  some  of  the  experts  affirming  and 
others  denying  the  possibility  of  determining  that 
certain  hair  was  human  hair.  If  the  microscopists 
of  this  country  or  of  England  have  given  much 
attention  to  the  question  whether  it  is  possible  to 
distinguish  human  hair  from  all  other  forms  of  hair, 
they  have  not  made  public,  so  far  as  the  writer 
knows,  the  result  of  their  investigation. 

§  64.  Expert  Testimony  in  Malpractice  Cases. — 
The  law  requires  a  physician  or  surgeon,  who  ac- 
cepts an  employment  to  treat  a  patient  profession- 
ally, to  exercise  such  reasonable  care  and  skill  as  is 
ordinarily  possessed  and  exercised  by  physicians  or 
surgeons  in  good  standing,  of  the  same  system  or 
school  of  practice,  in  the  locality  of  his  practice.2 
If  he  fails  to  perform  this  duty  he  is  liable  for  his 
failure  or  neglect.  To  constitute  a  school  of  med- 
icine under  this  rule,  it  must  have  rules  and  princi- 
ples of  practice  for  the  guidance  of  all  its  members, 
as  respects  principles,  diagnosis,  and  remedies,  which 
each  member  is  supposed  to  observe  in  any  given 
case.  If  the  practitioner  practices  without  such  a 
system  of  fixed  principles  or  formulated  rules,  he  does 


1  Richardson's  Medical  Microscopy,  295.  And  see  appendix. 

2  Bowman  v.  Woods,  1  Green  (Iowa),  441 ;  Patten  v.  Wiggin,  51  Me. 
505. 


EXPERT   TESTIMONY    IN    MALPRACTICE    CASES.      149 

not  belong  to  "a  school  of  medicine,"  and  he  is  held 
to  the  duty  of  treating  his  patient  with  the  ordinary 
skill  and  knowledge  of  physicians  in  good  standing 
who  practice  in  his  vicinity.1  Whether  a  physician 
has  in  a  given  case  adopted  the  proper  treatment  is 
a  question  on  which  the  opinions  of  medical  men  of 
the  same  school  may  be  received  in  evidence,  and 
they  may  state  whether  in  their  opinion  the  treat- 
ment was  proper  or  not,2  whether  it  was  in  conform- 
ity with  the  rules  and  practice  of  the  profession.8 
In  a  case  in  Wisconsin  it  was  deqided  that  a  physi- 
cian might  be  asked  the  following  questions:  ' 'Sup- 
pose his  statement  relative  to  the  amputation  and 
its  subseqent  treatment  to  be  truthful,  was  or  was 
not  the  amputation  well  performed?  Was  the  sub- 
sequent treatment  of  the  patient  proper  or  improper? 
And  in  your  opinion,  was  or  was  not  the  death  of 
the  patient  the  result  of  any  neglect  or  want  of  skill 
in  the  surgeon?"4  An  expert  in  medicine  can  be 
asked  whether  the  defendant  "  gave  the  case  such 
attention  as  it  demanded,"  and  whether  there  was 
"any  unskillful  management"  on  the  part  of  the 
defendant.5  The  defendant  in  such  a  case  has  been 
allowed  to  testify  that  the  surgeon  who  assisted  him 
to  perform  the  act  of  surgery  complained  of  was 
skillful.6  It  is  not  necessary  that  the  opinion  of  the 

1  Nelson  v.  Harrington,  72  Wis.  591. 

2  Wright  v.  Hardy,  22  Wis.  348;  Hoener  v.  Koch,  84  111.  408;  Mertz  v. 
Detweiler.  8   W.  &  S.  (Pa.)  376;  Heath  v.  Glisan,  3  Oregon,  67;  Rob- 
erts v.  Johnson,  58  N.  Y.  613,  615;  Mayo  v.  Wright,  63  Mich.  32. 

3  Twombly  v.  Leach,  11  Cush.  (Mass.)  405. 
<  Wright  v.  Hardy,  22  Wis.  348,  353. 

5  Olmsted  v.  Gere,  100  Pa.  St.  127.    In  this  case  it  was  also  held  proper 
for  a  physician  to  express  the  opinion,  that  a  limb  was  or  was  not  as 
good  as  the  average  condition  of  such  ca.«es  treated  by  shillful  physi- 
cians. 

6  Joues  v.  Angell.  95  Ind.  376. 


150  EXPERT   TESTIMONY. 

expert  in  a  malpractice  case  should  be  asked  upon 
any  particular  part  of  the  treatment,  but  taking  the 
whole  treatment  together  he  may  be  asked  whether 
it ''was  proper  or  improper."  And  a  physician 
who  attended  a  patient  who  had  been  under  the 
care  of  another  physician,  can  testify  as  to  what,  so 
far  as  he  could  judge,  had  been  the  first  physician's 
treatment;  in  what  respects  it  differed  from  his  own; 
what  effect,  so  far  as  he  could  judge,  it  had  upon 
the  plaintiff,  and  whether  or  not  he  saw  any  evidence 
that  the  plaintiff  had  been  injured  by  his  treatment.2 

§  65.  Expert  Testimony  in  Cases  of  Rape. — Science 
claims  that  by  the  use  of  the  microscope  in  the  in- 
vestigation of  stains  upon  clothing  supposed  to  be 
caused  by  spermatic  fluid,  as  in  cases  of  rape  and 
indecent  assault,  it  can  often  throw  much  light 
upon  the  guilt  or  innocence  of  persons  accused  of 
these  offenses.  The  following  account  taken  from  a 
recognized  authority  is  of  interest  in  this  connection: 

"In  a  case  upon  which  I  was  consulted  some  time 
since,  where  a  young  girl  was  said  to  have  been  vio- 
lated by  main  force  and  held  down  for  some  min- 
utes subsequently,  the  chemise  worn  on  the  occasion 
was  brought  to  me  for  examination.  On  inspection, 
besides  sundry  small  reddish  spots  and  streaks 
upon  the  front,  there  were  to  be  seen  two  large 
stains  on  either  side  of  the  middle  of  the  back  of  the 
garment,  each  about  four  inches  long  by  three 
inches  wide,  such  as  might  occur  from  any  fluid 
running  down  the  inside  of  the  thighs  from  the 
vulva  of  a  female  lying  upon  her  back  in  a  nearly 
horizontal  posture.  My  first  duty  being  obviously 

1  Mayo  v.  Wright,  63  Mich.  32. 

2  Barberv.  Merriam,  11  Allen  (Mass.),  322. 


EXPERT    TESTIMONY    IN    CASES    OF    RAPE.  151 

to  determine  whether  these  reddish  stains  were  pro- 
duced by  blood,  the  chemise  was  doubled  over  at 
the  most  highly  tinted  part  of  one  spot,  and  the 
convex  portion  of  the  fold  scraped  lightly  with  a 
sharp  scalpel  over  a  clean  side  until  a  small  quan- 
tity of  fine  reddish  dust  was  obtained.  This  powder 
was  covered  with  thin  glass,  and,  a  drop  of  water 
being  applied  to  one  edge,  and  a  fragment  of  bibu- 
lous paper  to  the  other,  a  current  of  fresh  fluid  was 
kept  up  for  about  one  minute  when  the  specimen 
was  examined  with  a  power  of  1,200  diameters.  * 
These  cellular  elements  became  more  clearly 
visible  when  slightly  tinted  with  aniline,  and  on 
measurement  with  the  micrometer  were  found  to 
average  about  4foo  and  3<foo  of  an  inch  in  diameter 
respectively,  whence  I  concluded  that  the  red  stains 
were  produced  by  blood,  probably  that  of  a  human 
being.  *  *  *  The  main  question,  as  to  the 
presence  or  absence  of  spermatozoa,  still  continuing 
unsolved,  as  none  had  been  detected  among  the 
particles  of  blood-clot,  a  fragment  of  muslin  about 
three-fourths  of  an  inch  long  by  one-eighth  an  inch 
wide,  selected  from  a  portion  where  the  fabric,  al- 
though but  little  stained  was  a  good  deal  stiffened 
by  the  suspected  material,  was  cut  out  with  a  pair 
of  curved  scissors,  and,  after  soaking  for  a  couple  of 
minutes  in  a  drop  or  two  of  weak  glycerine  and 
water,  its  inner  surface  was  gently  scraped  and 
pressed  with  a  scalpel,  the  visible  filaments  of  cotton 
picked  out  with  a  mounted  needle,  the  remainder 
covered  with  a  very  thin  glass  and  subjected  to  ex- 
amination under  *  *  a  power  of  about  2,800 
diameters.  Several  indubitable  spermatozoa  *  * 
were  readily  detected,  and  proved  beyond  all  ques- 


152  EXPERT   TESTIMONY. 

tion  that  spermatic  fluid,  mingled  with  blood,  had 
caused  the  stains  upon  the  chemise."  l 

There  have  been  a  number  of  cases  of  rape  before 
the  courts  in  which  questions  have  been  raised  con- 
cerning expert  testimony.  The  use  of  the  micro- 
scope is  not  the  only  method  which  science  has  of 
throwing  light  upon  such  inquiries,  as  the  following 
cases  will  show. 

On  the  trial  of  an  indictment  for  the  rape  of  a 
child,  the  opinion  of  a  physician  that  there  has  been 
actual  penetration  is  admissible.2  And  upon  such 
trials  medical  experts  may  be  examined  as  to 
the  health  and  physical  condition  of  the  prosecutrix 
at  the  time  of  the  alleged  offense,  as  bearing  upon 
her  ability  to  resist  the  defendant.3  But  it  has  been 
held  incompetent  to  ask  such  witnesses  the  follow- 
ing questions:  "From  what  you  know  of  her  health 
and  strength,  in  your  opinion  could  the  defendant 
have  had  carnal  connection  with  her  against  her 
will,  without  resort  to  other  means  than  the  exercise 
of  his  ordinary  physical  powers?"  And  whether,  in 

1  Rk-hardson's    Medical   Microscopy,  299,  300.    Dr.    Caspar,  in  his 
Hand-book  of  the  Practice  of  Forensic  Medicine,  Vol.  I.,  Sydenham 
Society's  translation,  London,  1861,  says:  ''Inexperienced  persons  may 
no  doubt  be  deceived  by  the  presence  of  epithelial  cells,  the  libers  of  the 
linen,  etc.,  but  whoever  has  only  once  seen  a  single  characteristic  sper- 
matozoon, dead  or  alive,  can  nevei   be  deceived  again.    I  have  recog- 
nized them  even  after  the  lapse  of  an  entire  year,  and  thereby  determined 
the  existence  of  a  seminal  stain.    Bayard  states  that  he  has  recognized 
them  after  three  years,  and  Ritter  even  after  four  years,  which  is  per- 
fectly credible,  presupposing  always  that  the  linen  during  that  time  has 
not  been  much  rubbed  or  handled,  because  the  forms  of  the  zoosperms 
will  be  thereby  destroyed."    Frey  in  his  Microscope  and  Microscopical 
Technology,  p.  559,  speaking  of  the  procedure  by  which  spermatozoa  are 
to  be  detected,  says:  "Any  spermatozoa  which  may  be  present  will  thus 
be  discovered  with  certainty,  and   there  is  scarcely  any  possibility  of 
mistaking  them/' 

2  State  v.  Smith,  Phillips  (X.  C.)  Law,  302. 
8  State  v.  Knapp,  45  X.  H.  148. 


EXPERT    TESTIMONY    IN    CASES    OF   RAPE. 

the  opinion  of  the  witness,  "a  rape  could  be  com- 
mitted on  a  female  who  had  borne  children,  and  was 
in  ordinary  health  and  strength,  without  resort  to 
other  means  than  the  exercise  of  ordinary  physical 
powers."  It  has  been  held  proper  for  an  expert 
to  state  what  effect  a  rape  would  have  on  the 
sexual  organs  of  the  female,  and  to  testify 
that  upon  an  examination  of  the  prosecutrix 
several  days  after  an  alleged  rape,  her  sexual 
organs  were  found  inflamed.  But  the  witness 
cannot  usurp  the  province  of  the  jury,  said  the 
court  in  the  case  cited,  by  expressing  the  opinion 
that  such  inflammation  "was  produced  by  having  a 
violent  connection." 

Medical  experts  sometimes  claim  to  be  able  to  de- 
termine whether  specimens  of  spermatozoa  are  really 
those  of  a  man  or  are  the  testicular  products  of  some 
animal,  employed  for  the  purpose  of  deception.' 


1  Wooden  v.  People.  1  Parker  Or.  Cas.  464.    And  see  Cook  v.  State,  24 
X.  J.  L.  843. 

2  Noonan  v.  The  State,  55  Mo.  258. 

3  "Under  such  circumstances  .accurate  measurements  would  be  very 
important,  and  since  these  differ  in  the  different  species  of  mammals,  and 
still  more  in  birds,  fishes,  etc..  they  would  probably  be  conclusive.    Of 
course,  counsel  propounding  such  a  theory  to  account  for  a  suspicious 
stain  proved  to  contain  spermatozoa,  should  rightfully  be  compelled  to 
show  some  probability  of  access  to  the  one  of  the  inferior  animals  from 
which  they  could  be  presumed  to  be  derived.    Of  these  the  more  likely 
are  perhaps  the  dog,  whose  spermatozoa,  as  figured  by  Rudolph  Wagner 
(Elements  of  Physiology,  translated  by  Robert  Willis,  M.  D.,  London, 
1844,  p.  11),  are  about  one-fourth  larger  than  those  of  man,  and  have  the 
body  broadest  at  the  extremity,  instead  of  at  the  base;  that  of  the  rab- 
bit, in  which  the  body  is   nearly  twice  the  size  of  the  same  part  of  a 
human  spermatozoon,  etc.    The  seminal  animalcules  of  the   monkey 
tribe  closely  resemble  those  of  man,  but  are  about  one-half  larger." 
Richardson's  Medical  Microscopy,  p.  303;  Dalton's  Human  Physiology, 
p.  458.    The  spermatozoa  of  the  human  subject  are  said  to  be  about 
1-600  of  an  inch  in  length,  according  to  the  measurements  of  Kolliker. 


154 


EXPERT   TESTIMONY. 


§  66.      Expert    Testimony    in    Cases     of    Abortion, 

Pregnancy  and  Seduction. — The  opinions  of  medical 
experts  are  received  upon  the  question  of  whether 
an  abortion  has  been  performed,1  and  they  are 
allowed  to  testify  that  certain  medicines  are 
known  as  abortives,  and  to  state  that  it  would 
be  a  dangerous  thing  to  give  certain  drugs,  in  almost 
any  dose,  to  a  pregnant  woman,  and  how  large 
a  dose  would  be  required  to  produce  an  abortion.2 
And  medical  experts  have  been  held  competent  to 
testify  that  certain  surgical  instruments  found  in  the 
house  of  the  defendant,  indicted  for  an  abortion, 
were  adapted  to  produce  an  abortion.3  A  physician 
testifying  as  an  expert  that  he  discovered  no  traces 
of  an  abortion  in  a  certain  case  was  properly  asked 
whether  such  traces  would  exist  under  certain  cir- 
cumstances, even  though  no  proof  of  such  circum- 
stances had  been  made/  When  the  prosecutrix,  in 
a  prosecution  for  producing  an  abortion  by  a  violent 
•and  unlawful  assault,  had  testified  to  the  violence 
used  upon  her,  and  to  her  subsequent  delivery  of  a* 
dead  child,  and  the  condition  of  its  body,  it  was 
held  that  she  was  incompent  to  testify  that  the 
abortion  was  the  result  of  the  violence,  she  being  a 
non-expert.5 

It  has  been  held  that  the  parts  of  the  person  upon 
whom  instruments  were  alleged  to  have  been  used 
for  the  purpose  of  procuring  an  abortion,  and  which 
had  been  preserved  in  alcohol,  could  be  submitted 


1  State  v.  Smith,  32  Me.  370;  State  v.  Wood,  53  N.  H.  484,  495. 

2  Regina  v.  Still,  30  Upper  Canada  (C.  P.),  30. 

3  Commonwealth  v.  Brown,  121  Mass.  69. 

4  Batbrfck  v.  Detroit,  etc.  Co.,  50  Mich.  629. 
4  Nevarro  v.  State,  i4  Tex.  App.  378. 


ABORTION,  PREGNANCY  AND  SEDUCTION.  155 

to  the  jury  in  connection  with  the  testimony  of  the 
physician  who  made  the  post-mortem  examination.1 

Physicians  are  permitted  to  express  an  opin- 
ion upon  the  question  of  pregnancy.2  A  med- 
ical witness  has  been  allowed  to  testify  that 
pregnancy  was  just  as  likely  to  take  place  in  case  of 
rape  as  in  the  case  of  a  voluntary  sexual  connection.3 
But  a  witness  who  has  had  no  peculiar  experience  and 
possesses  no  peculiar  skill,  is  not  competent  to  ex- 
press an  opinion  as  to  pregnancy/ 

In  a  prosecution  for  seduction  the  opinion  of 
medical  experts  has  been  held  admissible,  who  tes- 
tified to  the  effect  that  it  was  highly  improbable,  if 
not  impossible  for  intercourse  to  have  occurred  under 
the  circumstances  described  by  the  complainant  (i. 
e.,  in  a  buggy);  and  also  as  to  the  pain  and  suffer- 
ing the  complainant  would  have  experienced  had 
such  an  act  taken  place.5  And  it  has  been  held 
that  a  woman  who  had  experience  as  a  nurse  in 
childbirth,  and  as  such  had  been  in  attendance  at 
premature  births,  might  express  an  opinion  as  an 
expert  as  to  whether  the  birth  of  a  child  was  pre- 
mature.6 "The  witness,  by  her  experience  and  ob- 
servation," said  the  court,  "appears  to  have  ac- 
quired knowledge  of  the  subjects  about  which  she 
was  testifying,  that  persons  generally  do  not  have. 
To  the  extent  of  this  peculiar  knowledge  she  was  a 
person  of  skill  and  science,  anol  her  opinion,  founded 
upon  it,  was  evidence  to  go  to  the  jury." 

1  Commonwealth  v.  Brown.  14  Gray,  419. 

2  State  v.  Wood,  53  N.  H.  484,  495. 

8  State  v.  Knapp,  45  X.  H.  148, 152.    And  see  Young  v.  Johnson,  46 
Hun  (X.  Y.),164. 
4  Boies  v.  McAlister,  12  Me.  308. 
*  People  v.  Clark,  33  Mich.  112. 
6  Mason  v.  Fuller,  45  Vt.  29. 


156  EXPERT   TESTIMONY. 

§  67.  Opinions  of  Non-Professional  Witnesses  as 
to  Mental  Condition. — There  seems  to  have  been  no 
dispute  as  to  the  right  of  the  subscribing  witnesses 
to  a  will,  to  testify  concerning  the  actual  mental 
condition  of  the  testator,  but  their  opinions  have 
been  received  without  question.  The  fact  that  they 
were  present  at  the  time  the  will  was  signed,  makes 
them  competent  to  speak  upon  the  subject,  whether 
they  ''happen  to  be  the  attending  physicians,  nurses, 
children,  or  chance  strangers."  And  it  does  not 
seem  to  be  necessary  that  they  should  state  the 
facts  upon  which  their  opinions  are  predicated.2 
But  a  marked  difference  of  opinion  has  existed  as  to 
the  right  of  persons,  who  are  neither  the  subscribing 
witnesses  to  the  will,  nor  experts  in  mental  diseases, 
to  express  any  opinion  whatever  as  to  a  person's 
sanity  or  insanity,  soundness  or  unsoundness  of 
mind.  It  has  been  held  in  a  number  of  cases,  that 
the  opinions  of  such  witnesses  cannot  be  received.8 
Such  opinions  have  been  excluded  upon  the  theory, 
that  special  knowledge  and  skill  are  required  to 

1  Hardy  v.  Merrill,  56  N.   H.  227,  243;  Poole  v.  Richardson,  3  Mass. 
330;  Chase  v.  Lincoln,  31  Mass.  237;  Xeedham  v.  Ide,  5  Pick.  510;  Potts 
v.  House,  6  Ga.  324;  Van  Huss  v.  Rainbolt,  42  Tenn.  139;  De  Witt  v. 
Barley,  9  N.  Y.  371;  Williams  v.  Lee,  47  Md.  321;  Boardmau  v.  Wood- 
man, 47  N.  H.  120,  134;  Grant  v.  Thompson,  4  Conn.  203;  Wogan   v. 
Small,  11  S.  &  R.  (Penn.)  141 ;  Rambler  v.  Tyron,  7  S.  &  R.  (Penu.)  90, 
92;  Cilley  v.  Cilley,  34  Me.  162;  Robinson  v.  Adams,  62  Me.  369;  Logan 
v.  McGinnis,  12  Pa.  St.  27;  Titlow  v.  Titlow,  54  Pa.  St.  216;  Gibson  v. 
Gibson,  9  Yerg.  (Tenn.)  329;  Holcomb  v.  Holcomb,  95  X.  Y.  316,  321. 

2  Williams  v.  Lee,  47  Md.  321;  Van  Huss  v.  Rainbolt,  42  Tenn.  139; 
Potts  v.  House,  6  Ga.  324. 

3  Wyman  v.  Gould,  47  Me.  159;  Hiekman  v.  State,  38  Tex.  191;  State 
v.  Archer,  54  X.  H.  465;  Boardman  v.  Woodman,  47  X.  H.  120;  Com- 
monwealth v.  Fairbanks,  2  Allen  (Mass.),  511;  Townsend  v.  Pepperell, 
99  Mass.  40;  Hastings  v.  Rider,  99  Mass.  624,  625;  Commonwealth  v. 
Wilson,  1  Gray,  337;  State  v.  Pike,  49  X.  H.  399;  Van  Horn  v.  Keenan, 
28  111.  445,  449;  De  Witt  v.  Barley,  9  X.  Y.  371;  State  v.  Geddis.  42 
Iowa,  268. 


OPINIONS    AS    TO    MENTAL    CONDITION.  157 

judge  intelligently  of  the  mental  condition  of  an- 
other, and  that  if  the  witnesses  give  a  detailed  ac- 
count of  the  acts  and  conduct  of  the  person  whose 
mental  capacity  is  in  question,  the  jury  are  as 
competent  to  form  an  opinion  thereon  as  the  witnesses 
themselves  ;  that  the  opinions  of  professional  wit- 
nesses may  be  received,  as  they  can  judge  with 
some  degree  of  accuracy,  from  pathological  symp- 
toms, but  that  the  opinions  of  non-professional  Avit- 
nesses  ought  not  to  be  received,  as  they  can  only 
form  their  opinions  from  the  actual  demonstrations 
of  the  person,  and  that  those  demonstrations  ought  to 
be  stated  to  the  jury,  and  that  body  left  to  form  their 
own  opinion  as  to  the  cause  and  character  of  the  ap- 
pearances described.  The  fact  has  come,  however, 
to  be  recognized,  that  it  is  impossible  so  to 
describe  the  appearance  and  demonstrations 
of  a  person,  as  to  convey  any  accurate  idea 
of  their  exact  character,  and  to  leave  upon  the 
mind  of  jurors  the  legitimate  impressions  which 
such  demonstrations  and  appearances  naturally 
leave  upon  the  mind  of  the  actual  observer. 
The  result  has  been  that  many  of  the  earlier  cases 
have  been  overruled,  and  the  principle  has  come  to 
be  generally  recognized  that  non-professional  wit- 
nesses may  give  their  opinions  as  to  sanity,  as  a  re- 
sult of  their  personal  observation  of  the  person  whose 
mental  condition  is  in  question,  after  first  stating  the 
facts  which  they  have  observed.1 

1  Carpenter  v.  Hatch,  64  X.  H.  573;  McRae  v.  Malley,  93  X.  C.  154; 
Conn.  Mut.  Life  Ins.  Co.  v.  Lathrop,  111  U.  S.  612;  Shaver  v.  McCarthy, 
110  Pa.  St.  339;  Taylor  v.  Commonwealth,  109  Pa.  St.  262;  Grubb  v. 
State,  117  Ind.  277;  State  v.  Potts,  100  X.  C.  457;  Thomas  v.  State,  40 
Texas,  65;  Whitcomb  v.  State,  41  Texas,  125;  McClackey  v.  State.  5 
Tex.  Ct.  of  App.  320;  Webb  v.  State,  5  Tex.  Ct.  of  App.  596;  Hardy  v. 
Merrill,  56  X.  H.  227;  Dennis  v.  Weeks,  51  Ga.  24;  Choice  v.  State,  31 


158  EXPERT    TESTIMONY. 

But  in  New  York  the  principle  is  still  adhered  to 
that  laymen  will  not  be  allowed  to  express  an  opin- 
ion that  a  person  was  sane  or  insane,  except  in  the 
case  of  subscribing  witnesses.  The  rule  in  that  State 
is  that  when  a  layman  is  examined  as  to  facts  within 
his  own  knowledge  and  observation,  tending  to  show 
soundness  or  unsoundness  of  a  person's  mind,  he 
may  characterize  as  rational  or  irrational  the  acts  and 
declarations  to  which  he  testifies,  but  while  he  can 
thus  state  the  impression  produced  by  what  he  wit- 


Ga.  424,  466;  Berry  v.  State,  10  Ga.  511;  People  v.  Sanford,  43  Cal.  29; 
Koe  v.  Taylor,  45  111.  486;  Seller  v.  Jones,  22  Ark.  92;  Clark  v.  State,  12 
Ohio,  483;  State  v.  Hayden,  51  Vt.  296;  Crane  v.  Crane,  33  Vt.  15; 
Morse  v.  Crawford,  17  Vt.  499;  Florey's  Ex'rs  v.  Florey,  24  Ala.  247; 
Puryear  v.  Reese,  46  Tenn.  21;  Gibson  v.  Gibson,  9  Yerg.  ^Tenn.)  329; 
People  v.  Finley,  38  Mich.  482,  484;  Walker  v.  Walker,  14  Ga.  242; 
Fielder  v.  Collier,  13  Ga.  496;  Dieken  v.  Johnson,  7  Ga.  484;  Foster  v. 
Brooks,  6  Ga.  290 ;  Crowe  Adm'r  v.  Peters,  63  Mo.  429;  Sutherland  v. 
Hawkins,  56  Ind.  343;  Rush  v.  Megee,  36  Lnd.  69;  Hunt's  Heirs  v.  Hunt, 
3  B.  Monr.  (Ky.)  577;  Rambler  v.  Tyron,  7  S.  &  R.  90;  Wilkinson  v. 
Pearson,  23  Pa.  St.  117;  McDougald  v.  McLean,  1  Winston  (N.  C.)  Law, 
120;  Estate  of  Brooks,  54  Cal.  471;  Williams  v.  Lee,  47  Md.  321;  Dove 
v.  State,  50  Tenn.  348;  Waters  v.  Water.*,  35  Md.  531 ;  Pidcock  v.  Potter, 
€8  Pa.  St.  342;  State  v.  Newlin,  69  Ind.  108;  State  v.  Klinger,  46  Mo. 
224;  Clary  v.  Clary,  2  Ired.  (N.  C.)  78;  De  Witt  v.  Barley,  17  N.  Y.  340; 
Beaubien  v.  Cicotte,  13  Mich.  459;  Kelly's  Heirs  v.  McGuire,  15  Ark. 
555,601;  Stewart  v.  Redditt,  3  Md.  67;  Dorsey  v.  Warfleld,  7  Md.  65; 
Brooke  v.  Townshend,  7  Gill  (Md  ),  24;  Burnham  v.  Mitchell,  34  Wis. 
Ill;  Kilgore  v.  Cross,  1  Fed.  Rep.  582;  People  v.  Wreden,  59 
Cal.  392;  Pinney's  Will,  27  Minn.  280;  Pittard  v.  Foster, 
12  111.  App.  132;  Upstom  v.  People,  109  111.  169;  American  Bible  Society 
v.  Price,  115  111.  623;  Goodwin  v.  The  State,  96  Ind.  500;  Ryman  v. 
Crawford,  86  Ind.  262;  Turner  v.  Kansas  City,  etc.  R.  R.  Co.,  23  Mo. 
App.  13;  Bell  v.  McMaster,  29  Hun  (N,  Y.),  272;  McLeary  v.Morment, 
84  N.  C.  235;  Barker  v.  Pope,  91  X.  C.  165;  West  more  v.  Sheffield,  56 
Vt.  239;  Parkhurot  v.  Hosford,  21  Fed.  Rep.  827;  Chase  v.  Winans,  59 
Md.  475;  Appleby  v.  Brock,  76  Mo.  314;  State  v.  Erb,  74  Mo.  199;  Wood 
v.  The  State,  58  Miss.  741 ;  Woodcock  v.  Johnson,  36  Minn.  217;  Wise  v. 
Foote,  81  Ky.  10;  State  v.  Winters,  72  Iowa,  627;  State  v.  Bryant,  93 
Mo.  273;  Campbell  v.  State,  10  Tex.  Ct.  of  App.  560;  Harris  v.  State,  18 
Tex.  Ct.  of  App.  287,  294;  Johnson  v.  Culver,  116  Ind.  278;  Keithley  v. 
Stafford,  126  111.  507;  Frizzell  v.  Reed,  77  Ga.  724;  Fishburne  v.  Fergu- 
son, 84  Va.  87. 


OPINIONS    AS    TO    MENTAL    CONDITION.  159 

nessed,  he  is  not  competent  to  express  an  opinion  on 
the  general  question  whether  the  person's  mind  was 
sound  or  unsound.1 

And  in  Massachusetts  also  the  courts  still  exclude 
the  opinions  of  ordinary  witnesses  as  to  mental  sound- 
ness or  unsoundness.  In  that  State  only  experts  and 
subscribing  witnesses  to  wills  are  permitted  to  give 
opinions  on  questions  of  mental  condition  and  capac- 
ity; and  only  persons  of  scientific  training  upon  the 
subject  and  physicians  are  there  regarded  as  experts." 
But  the  courts  in  that  State  will  not  allow  an  ordi- 
nary witness  to  say  whether,  in  his  opinion,  a 
person  has  failed  mentally  within  a  given  time,8  or 
whether  the  witness  has  noticed  any  want  of  cohe- 
rence in  another's  remarks,4  or  whether  the  witness 
had  ever  observed  any  fact  which  led  him  to  infer 
any  derangement  of  intellect.5 

In  a  case  in  Ohio  the  Supreme  Court  of  that  State 
ruled  that  the  witness  ought  be  asked  what  opin- 
ion he  entertains  at  the  time  of  the  trial,  and  not 
as  to  the  opinion  which  he  entertained  at  the 
time  of  the  acts  referred  to  by  him,  inasmuch  as  sub- 
sequent reflection  and  consideration  may  have  satis- 
fied him  that  the  opinion  formed  at  the  time  of  ob- 
servation was  erroneous.6  And  in  Vermont  the  court 


1  Clapp  v.  Fullerton,  34  X.  Y.  190;  O'Brien  v.  People,  36  X.  Y.  276; 
Reaj  v.  People,  42  X.  Y.  270;  Hewlett  v.  Wood,  55  X.  Y.  634;  Rider  v. 
Miller,  86  X.  Y.  507;  In  re  Ross,  87  X.  Y.  514;  Holcomb  v.  Holcomb,  95 
X.  Y.  31G;  Matter  of  Klock,  49  Hun  (X.  Y.),450;  People  v.  Packenham, 
lir.  X.  Y.  200. 

2  Commonwealth  v.  Brayman,  136  Mass.  438;  Cowles  v.  Merchants 
140  Mass.  377;  May  v.  Bradlee,  127  Mass.  414;  Hastings  v.  Rider,  9s* 
Mass.  622. 

3  Commonwealth  v.  Brayman,  136  Mass.  438. 

4  Barker  v.  Comius,  110  Mass.  477. 

5  May  v.  Bradlee,  127  Mass.  414. 

«  Runyan  v.  Price,  15  Ohio  St.  14. 


160  EXPERT    TESTIMONY. 

held  that,  the  fact  that  the  witness  did  not  form  his 
opinion  at  the  time  he  saw  and  observed  the  facts 
testified  to  by  him,  did  not  render  his  opinion  on 
that  account  inadmissible.1 

It  must  be  conceded,  we  think,  that  the  interests 
of  justice  require  that  ordinary  witnesses  should  be 
allowed  to  express  an  opinion  as  to  soundness  of 
mind  based  on  their  personal  knowledge  and  obser- 
vation of  the  party's  acts.  The  inquiry  does  not 
seem  to  be  one  so  necessarily  involving  scientific 
evidence,  as  to  be  beyond  the  domain  of  common 
sense.  And  it  is  quite  possible  for  non-professional 
witnesses  to  observe  innumerable  acts,  motions  and 
expressions,  which  it  is  impossible  to  communicate 
to  others  in  such  a  way  as  to  convey  any 
fair  conception  of  their  importance,  and  which 
are,  nevertheless,  sufficient  to  conclusively  sat- 
isfy the  observer  as  to  a  person's  mental  con- 
dition. While  such  opinions  are  admissible,  yet 
no  general  rule  can  be  laid  down  as  to  what  shall  be 
deemed  a  sufficient  opportunity  of  observation  in  the 
witness,  other  than  it  has  enabled  him  to  form  a 
belief  or  judgment  thereon.2 

When  such  opinions  are  received  in  evidence,  the 
weight  to  be  accorded  to  them  is  a  question  for  the 
jury,  who  must  determine  whether  the  facts  testified 
to  by  the  witnesses  as  a  basis  for  their  opinions  justi- 
fied the  opinions  expressed.3 

The  opinions  of  ordinary  witnesses  as  to  mental 

condition,    as   in   other   cases    when   the   opinions 

» 

1  Hathaway's  Adm'r  v.  National  Life  Ins.  Co.,  48  Vt.  335. 

2  Choice  v.  The  State,  31  Ga.  424,  467. 

3  Taylor  v.  Commonwealth,  109  Pa.  St.  262;  Chase  v.  Winans,  59  Md. 
475;  Wood  v.  State,  58  Miss.  741;  Wise  v.  Foote,  81  Ky.  10;  McClackey 
v.  State,  5  Tex.  Ct.  of  App.  331. 


TESTIMONY    AS    TO    MENTAL    CONDITION.  161 

of  such  witnesses  are  received,  are  always  based 
on  their  personal  knowledge  of  the  in  dividual  case, 
and  never  on  the  evidence  of  other  witnessess,  nor 
on  a  hypothetical  case.1 

In  Texas,  where  ordinary  witnesses,  personally 
acquainted  with  the  individual  whose  mental  condi- 
tion is  the  subject  of  inquiry,  are  allowed  to  express 
their  opinion  based  on  the  facts  they  have  observed, 
it  has  been  held  that  the  opinion  of  a  non-profes- 
sional witness' based  on  his  personal  observation  of 
the  symptoms  of  kleptomania  is  admissible  in  evi- 
dence in  connection  with  his  testimony  to  the  symp- 
tomatic facts  on  which  his  opinion  rests.  This  con- 
clusion was  reached  on  the  theory  that  the  opinions 
of  such  witnesses  Avere  admissible  as  to  mental  un- 
soundness,  and  that  kleptomania  was  a  species  of 
mental  derangement." 

§  68.      Expert  Testimony  as  to  Mental  Condition. — 

1 .  No  question  is  made  anywhere  but  that  medical 
men  who  are  conversant  with  insanity,  who  have 
made  a  specialty  of  mental  diseases,  and  had  experi- 
ence with  the  insane,  are  competent  to  express  opin- 
ions as  to  mental  condition,  although  they  have  not 
made  any  personal  examination  of  the  individual 
whose  mental  condition  is  in  dispute.  They  can  ex- 
press an  opinion  in  answer  to  hypothetical  ques- 
tions.3 

2.  The  principle  is  likewise  established  that  if  a 
physician  visits  a  person,  and  from  actual  examina- 
tion or  observation  becomes  acquainted  with  his 

1  Appleby  v.  Brock,  76  Mo.  314;  State  v.  Erb,  74  Mo.  199.    And  see 
section  3,  p.  8. 

2  Harris  v.  The  State,  18  Tex.  Ct.  of  App.  287. 

3  Commonwealth  v.  Rogers,  7  Met.  (Mass.)  500:  State  v.  Windsor,  5 
Harr.  (Del.)  512. 

(11) 


162  EXPERT    TESTIMONY. 

mental  condition,  he  may  give  an  opinion  respecting 
such  mental  condition  at  that  tim  >,  although  the 
witness  does  not  appear  to  have  made  any  special 
study  of  mental  diseases.1 

As  Mr.  Chief  Justice  DILLOX  expressed  it,  in  a 
case  in  Iowa:  "There  is  no  more  reason  why  he 
may  not  do  this,  than  why  he  might  not  testify  that 
he  saw  a  certain  person  at  a  certain  time,  and  that 
he  was  then  laboring  under  an  epileptic  fit,  or  under 
an  attack  of  typhus  fever,  or  had  been  stricken  down 
and  rendered  unconscious  by  an  apoplectic  stroke." 

We  have  seen  that  ordinary  witnesses  are  al- 
lowed to  express  opinions  011  this  subject,  when 
such  opinions  are  based  on  their  own  observation 
and  knowledge  of  the  person  whose  mental  condition 
is  in  question.3  Where  such  opinions  are  received, 
surely  no  question  can  be  made  as  to  the  right 
of  a  physician  to  express  an  opinion  based  on  per- 
sonal knowledge  and  observation  of  the  party. 
But  in  Maine,  where  the  opinions  of  non-profes- 
sional witnesses  are  not  admissible  on  the  question, 
it  is  held  that  a  physician  who  made  a  single  exam- 
ination of  the  person,  and  that  to  qualify  himself  as 
a  witness  in  a  pending  litigation,  was  incompetent 
to  express  an  opinion.* 

3.  But  another  question  is  presented  when  it  is 
sought  to  obtain  the  opinion  of  the  witness  in  answer 
to  a  hypothetical  question,  or  upon  the  testimony  of 
other  witnesses,  and  not  upon  his  personal  observa- 

1  Baxter  v.  Abbott,  7  Gray  (Mass.),  71;  State  v.  Feller,  25  Iowa,  67, 
75:  Heald  v.  Thing.  45  Me.  392;  McAllister  v.  State,  17  Ala.  435;  Potts 
v.  House,  6  Ga.  324,  335;  Hastings  v.  Rider,  99  Mass.  6'32;  Pigg  v.  State, 
43  Texas,  111;  Lessee  of  Hoge  v.  Fisher,  1  Pet.  C.  C.  164. 

z  State  v.  Felter,  25  Iowa,  67,  75. 

3  See  section  67. 

4  Fayette  v.  Chesterville,  77  Me.  28. 


TESTIMONY    AS    TO    MENTAL    CONDITION.  163 

tion  of  the  case.  A  difference  of  opinion  exists 
whether  a  physician  is,  because  of  his  profession, 
competent  to  express  an  opinion  not  based  on  his 
personal  knowledge  of  the  case.  Some  cases  seem  to 
require  that  a  physician  should  have  made  the  sub- 
ject of  mental  diseases  one  of  special  study  and  atten- 
tion in  order  to  give  an  opinion  on  a  hypothetical 
case.1  It  has  been  decided  recently,  in  Kentucky, 
that  if  a  physician  is  able  to  state  that  he  has,  as  a 
physician,  studied  the  disease  of  insanity  sufficiently 
well  to  give  a  medical  opinion  as  to  the  disease  and 
diagnose  the  case,  he  is  a  competent  witness.1 

But  in  some  cases  this  special  study  does  not  appear 
to  have  been  insisted  on.3 

A  very  interesting  case  was  decided  in  the  Su- 
preme Court  of  California  in  1880,  which  involved 
the  question  whether  a  Roman  Catholic  priest  could 
express  an  opinion  as  to  the  sanity  of  a  testator, 
such  opinion  being  given  by  him  in  the  character  of 
an  expert.  The  court,  overruling  the  decision  of 
the  trial  court,  held  that  he  was  competent  to  testify 
as  an  expert.  The  evidence  showed  that  he  had 
been  regularly  educated  for  the  priesthood  in  a  col- 
lege in  Spain,  that  he  had  officiated  as  a  priest  for 
ten  years,  that  it  was  part  of  his  preparatory  educa- 
tion to  become  competent  to  pass  upon  the  mental 
condition  of  communicants  in  his  church,  and  that 
for  that  purpose  physiology  and  psychology  were 
branches  of  his  study.  It  appeared,  said  the  court, 
"That  previous  to  officiating  as  a  priest  it  was 

1  See  Commonwealth  v.  Rich,  14  Gray,  335;  Fayette  v.  Cbesterville, 
77  Me.  33;  Russell  v.  State,  53  Miss.  367. 

2  Montgomery  v.  Commonwealth,  11  S.  W.  Rep.  475. 

3  Schneider  v.  Manning,  121  111.  376;  Potts  v.  House,  6  Ga.  324,  335; 
Guetig  v.  State,  66  Ind.  94, 104;  State  v.  Windsor,  5  Harr.  (Del.)  512, 
542;  People  v.  Schuyler,  106  N.  Y.  298. 


164  EXPERT    TESTIMONY. 

requisite  that  he  should  be  skilled  in  determining 
the  mental  condition  of  those  who  sought  the  sacra- 
ments. That  in  every  case  of  the  administration  of 
the  rites  of  his  church  to  invalids  or  dying  persons, 
it  was  necessary  for  the  priest  to  make  an  examina- 
tion of  the  mental  condition  of  the  recipient,  to 
ascertain  if  his  mind  was  in  a  proper  state  to  reason 
or  act  of  its  own  volition.  That  the  sacrament  could 
only  be  administered  after  such  a  preliminary  ex- 
amination, and  that  therefore  as  a  priest  he  was 
daily  required  to  exercise  and  pass  his  judgment  on 
the  mental  condition  of  persons." 

While  a  medical  expert  may  state  his  opinion 
as  to  the  sanity  or  insanity  of  a  person,  and  may 
give  the  reason  on  which  it  is  founded,  yet  it  has  been 
held  that  inferences  from  facts  which  are  within  the 
range  of  ordinary  judgment  and  experience  are  to  be 
drawn  by  the  jury,  and  cannot  be  proved  as  facts 
by  the  opinion  of  the  expert.2 

§  69.  Form  of  Question  as  to  Mental  Condition. — 
We  have  elsewhere  considered  the  mode  of  exami- 
nation to  be  pursued  in  the  case  of  expert  witnesses.8 
The  principles  there  stated  are,  of  course,  as  appli- 
cable to  the  examination  of  experts  in  mental  dis- 
eases, as  to  the  examination  of  an}7  other  class  of 
experts,  and  yet  it  may  be  well  to  make  further 
reference  to  that  subject  in  this  connection.  Wit- 
nesses may  testify  as  to  mental  soundness  and  un- 
soundness,  sanity  or  insanity,  capacity  for  transact- 
ing business,  and  as  to  the  vigor  or  strength  of  the 
mental  powers.  The  weight  of  authority  is,  how- 
ever, opposed  to  allowing  the  witness  to  express  an 

1  Estate  of  Toornes,  54  Cal.  510. 

2  People  v.  Barber,  115  N.  Y.  473. 

3  See  Chapter  III. 


FORM    OF    QUESTION.  165 

opinion  as  to  whether  an  individual  had  the  mental 
capacity  to  dispose  of  his  property  by  will  or  deed.1 
When  the  question  in  issue  is  whether  a  person  was 
possessed  of  testamentary  capacity,  the  following 
form  of  question  has  been  approved:  "Were  his 
mind  and  memory  sufficiently  sound  to  enable  him 
to  know  and  understand  the  business  in  which  he 
was  engaged  at  the  time  when  he  executed  his  will?" 
The  witness  may  also  be  asked  for  his  opinion  of 
the  party's  capacity  to  comprehend  his  property  and 
make  an  intelligent  disposition  of  it  by  will,3  and 
as  to  his  capacity  to  transact  business.*  But  it  has 
been  held  proper  to  decline  to  allow  non-expert  wit- 
nesses to  testify  as  to  their  opinion  of  the  mental 
condition  of  a  testator  on  the  day  of  the  execution 
of  his  will,  when  they  did  not  see  him  on  that  day. 
They  could  give  their  opinion  of  his  condition  when 
they  last  saw  him  before  the  will  was  made.5 
When  the  witness  is  allowed  without  objection  to 
express  an  opinion  as  to  a  testator's  capacity  to  make 
a  will,  and  has  been  allowed  to  do  this  without 
stating  the  grounds  for  the  opinion,  the  fact  that 
the  witness  was  not  shown  to  have  any  correct  un- 
derstanding of  the  true  criterion  of  testamentary 
capacity,  constitutes  no  objection  to  a  finding  and 
judgment  based  on  such  testimony.6 

In  a  case  where  the  question  involved  was  whether 

1  Schneider  v.  Manning,  121  111.  376,  386;  White  v.  Bailey,  10  Mich. 
155;  Kempsey  v.  McGinnis,  21  Mich.  123;  Gibson  v.  Gibson,  9  Yerg. 
(Tenn.)  332;  Fairchild   v.  Bascom,  35  Vt.   398;  Farrell  v.   Brennan,  32 
Mo.  328;  Pinney's  Will.  27  Minn.  280. 

2  See  1  Jarnian  on  Wills,  p.  51,  and  McClintock  v.  Curd,  32  Mo.  419. 

3  Pinney's  Will,  27  Minn.  280,  282.     And  see  Melendy  v.  Spauldiug,  54 
Vt.  517. 

4  Woodcock  v.  Johnson,  36  Minn.  217,  219. 
4  Blake  v.  Rourke,  74  Iowa,  519,  523. 

8  Appleby  v.  Brook,   71  Mo.  314. 


166  EXPERT   TESTIMONY. 

an  alleged  imbecile  had  sufficient  mental  capacity 
to  enable  him  to  contract  marriage,  it  was  held  to 
be  within  the  discretion  of  the  presiding  judge  to 
allow  an  expert  to  testify  that  the  alleged  imbecile 
was  not  capable  of  understanding  his  duties  towards 
his  wife  arising  out  of  the  matrimonial  union.1 

In  criminal  cases,  where  insanity  is  set  up  as  a  de- 
fense, the  expert  may  be  asked  his  opinion  as  to  the 
condition  of  the  prisoner's  mind — whether  he  was 
capable  of  distinguishing  right  from  wrong — and,  in 
States  where  the  courts  recognize  it  as  an  element  of 
defense,  whether  he  had  sufficient  reason  to  control 
the  passions  which  prompted  the  act  complained  of. 
But  unless  the  conclusion  of  the  expert  has  been 
reached  as  the  result  of  personal  knowledge  of  the 
defendant  himself,  the  opinion  should  be  in  answer 
to  a  hypothetical  question.2 

In  a  case  in  New  York,  a  suggestion  is  made  as  to 
the  proper  mode  of  examining  a  medical  witness  on 
the  subject  of  insanity.  Counsel  should  first  inquire 
of  the  witness  as  to  particular  symptoms  of  insanity, 
then  ask  whether  all,  or  any,  and  which,  of  the  cir- 
cumstances spoken  of  by  the  witnesses  upon  the  trial, 
are  to  be  regarded  as  such  symptoms,  and  then  in- 
quire what  combination  of  these  circumstances  would, 
in  the  opinion  of  the  witness,  amount  to  proof  of  in- 
sanity.3 

This  plan  seems  preferable  to  a  long  hypothetical 
question,  embracing  many  distinct  facts  assumed  by 
counsel  as  established  by  the  evidence,  for  the  jury 

1  St.  George  V.  Biddeford,  76  Me.  598. 

2  McXaghten's  Case,  10  C.  &  F.  200,  212.     See  a  quotation  from  the 
opinion  delivered  by  Lord  Chief  Justice  Tindale  in  this  case,  and  which 
can  be  found  on  page  76  of  this  work. 

3  People  v.  McCann,  3  Parker's  Cr.  R.  272,  298. 


EVIDENCE  BEARING  OX  INSANITY.        167 

may  not  be  satisfied  that  all  the  facts  have  been  es- 
tablished. And  it  is  also  preferable,  for  reasons 
elsewhere  stated,  to  a  question  based  on  the  assump- 
tion that  everything  stated  by  the  witnesses  is  true.1 
Of  course,  if  the  expert  has  made  a  personal  exami- 
nation he  can  state  his  opinion  as  based  on  the  ex- 
amination. 

§  <0.  Evidence  Bearing  on  Question  of  Insanity. — 
The  opinions  of  experts  are  received  as  to  the  causes 
tending  to  the  development  of  mental  unsoundness. 
For  instance,  the  opinions  of  experts  have  been  re- 
ceived showing  that  paralysis  in  old  persons  has  a 
tendency  to  impair  the  mind.2  As  bearing  upon  the 
question  of  a  person's  insanity,  or  tendency  to  in- 
sanity, evidence  is  received  that  such  person's  father 
or  mother  were  of  unsound  mind,3  or  that  his  uncle,4 
or  brother,5  or  other  relations  suffered  from  mental 
disease.6 

Evidence  that  a  person  was  reported  in  the  neigh- 
borhood in  which  he  lived  to  be  insane,  is  inadmis- 
sible.7 But  reputation  in  the  family  as  to  facts  con- 
nected with  the  family  is  allowed  to  be  shown  as  to 

1  See  p.  61. 

2  Lord  v.  Beard,  79  X.  C.  5. 

"Coughlin  v.  Poulson,  2  McArthur,  308;  Baxter  v.  Abbott,  7  Gray 
(Muss.),  71. 

4  Baxter  v.  Abbott,  supra. 

5  Fraser  v.  Jennison,  42  Mich.  206,  228. 

6  People  v.  Montgomery,  13  Abb.  Pr.  (N.  S.)  207,  250;  State  v.  Wind- 
sor, 5  Harr.  (Del.)  512. 

7  State  v.  Hoyt,  47  Conn.  518,  539.    And  so  in  Foster  v.  Brooks,  6  Ga. 
287,  292.  where  the  court  say :     "By  this  kind  of  evidence  a  fool  may  be 
proved  a  wise  man,  and  a  philosopher  a  fool.    Public  opinion  declared 
Copernicus  a  fool,  when  he  promulgated  the  planetary  system,  and 
Columbus  a  fool  when  he  announced  the  sublime  idea  of  a  New  World. 
Hazardous  in  the  extreme  would  it  be  to  the  rights  of  parties  under  the 
law.  if  they  were  allowed  to  depend  upon  the  opinion  of  a  neighborhood 
of  the  sanity  of  individuals."    See  also  Ashcralt  v.  De  Arrnond,  44  Iowa. 
229. 


168  EXPERT    TESTIMONY. 

certain  matters  which  could  not  be  shown  by  proof 
of  reputation  in  the  neighborhood  as  to  the  same 
matters.  It  does  not  follow  that  in  all  cases  where 
proof  by  neighborhood  reputation  is  excluded  that 
proof  by  reputation  in  the  family  will  also  be  ex- 
cluded. And  while  it  has  been  held  that  reputation 
in  the  family  of  the  insanity  of  its  members  is  inad- 
missible,1 yet  it  has  been  held  on  the  other  hand  that 
reputation  in  the  family  of  the  insanity  of  some  of 
the  members  of  the  family,  is  admissible  on  the 
same  principle  which  admits  such  reputation  as  to 
deaths,  births,  genealogies,  etc.2  Unless  such  evi- 
dence could  be  introduced,  it  would  be  impossible, 
in  many  cases,  to  show  the  insanity  of  deceased 
members  of  the  family. 

But  it  is  highly  important  that  evidence  should  not 
be  received  as  suggesting  insanity,  unless  it  has  some 
legitimate  tendency  to  prove  it.  '  'We  are  persuaded 
that  much  wrong  has  unwittingly  been  done  in  many 
cases,  by  allowing  misfortunes,  family  calamities 
and  personal  peculiarities,  to  go  to  the  jury  as  hav- 
ing some  necessary  tendency  to  unsettle  the  mind, 
and,  therefore,  some  bearing  on  the  issue  of  mental 
soundness." 

It  is  proper  to  inquire  as  to  the  person's 
state  of  mind,  both  before  and  after  the  time 

1  Walker  v.  State,  102  Ind.  502,  507.    This  case  cites  in  support  of  its 
ruling  cases  which  hold  neighborhood  reputation  inadmissible  on  such 
a  question.    The  only  other  case  it  cites  is  Choice  v.  State,  31  Ga.  423, 
where,  without  doubt,  it  was  correctly  decided  that  family  and  neigh- 
borhood reputation  was  not  admissible  to  prove  that  the  prisoner  was 
permanently  injured  in  bis  mind  by  reason  of  an  injury  in  his  mind 
which  he  had  received.    In  such  a  case  there  could  be  no  necessity  for 
resorting  to  such  proof,  as  the  man  was  alive  at  the  very  time  the  in- 
quiry was  being  made. 

2  State  v.  Windsor.  5  Harr.  (Del.)  512. 

3  Eraser  v.  Jennison.  42  Mich.  20G,  227. 


EVIDENCE    BEARING    ON    INSANITY.  169 

concerning  which  the  particular  inquiry  is  directed.1 
"Upon  the  question  of  sanity  at  the  time  of  com- 
mitting an  offense,"  says  the  Supreme  Court  of 
Massachusetts,  "the  acts,  conduct  and  habits  of  the 
prisoner  at  a  subsequent  time,  may  be  competent  as 
evidence  in  his  favor.  But  they  are  not  admissible, 
as  of  course.  When  admissible  at  all,  it  is  upon  the 
ground,  either  that  they  are  so  connected  with,  or 
correspond  to  evidence  of  disordered  or  weakened 
mental  condition  preceding  the  time  of  the  offense, 
as  to  strengthen  the  inference  of  continuance,  and 
carry  it  by  the  time  to  which  the  inquiry  relates, 
and  thus  establish  its  existence  at  that  time;  or  else 
that  they  are  of  such  a  character  as  of  themselves  to 
indicate  unsoundness  to  such  a  degree,  or  of  so 
permanent  a  nature,  as  to  have  required  a  longer 
period  than  the  interval  for  its  production  or  develop- 
ment." 

It  is  admissible  to  give  in  evidence  particular 
acts  of  madness.3  But  it  is  not  competent  to  in- 
troduce the  doubt  of  an  expert  as  to  a  person's 
sanity.4  And  a  record  of  the  condition  and  treat- 
ment of  a  patient  in  a  hospital,  produced  at  a  trial 
forty  years  after  its  date  by  the  superintendent  of 
the  hospital,  of  which  he  is  the  official  custodian, 
and  which  purports  to  have  been  contemporaneously 
made  by  the  attending  physicians,  of  all  cases  there 

1  McAllister  v.  State,  17  Ala.  434,  436;  McLean  v.  State,  16  Ala.  672; 
Grant  v.  Thompson.  4  Conn.  203,  208;  Kinne  v.  Kinne,  9  Conn.  102; 
Norwood  v.  Morrow.  4  Dev.  &  Batt.  442,  451;  State  v.  Felter,  25  Iowa, 
<;7.  75;    Lake  v.  People,  1  Parker  Cr.  Ca^.  495;  Freeman  v.  People,  4 
Denio,  9. 

2  Commonwealth  v.  Pomeroy,  117  Mass.  148.    See,  too,  White  v. 
Graves,  107  Mass.  325. 

8  Clark  v.  Periam.  2  Atk.  337,  340. 
4  Sanchez  v.  People.  22  N.  Y.  147. 


170  EXPERT   TESTIMONY. 

treated,  and  which  it  was  their  duty  to  make,  has 
been  held  in  Massachusetts  to  be  admissible  in  evi- 
dence, as  a  foundation  for  the  opinion  of  an  expert 
as  to  whether  it  indicated  mental  disease  of  the 
patient,  and  that  without  identifying  the  person  who 
made  it.1 

In  a  case  where  the  sanity  of  a  testatrix  was 
questioned,  and  positive  evidence  of  her  insanity 
had  been  given,  upon  its  being  proved  that  she  had 
a  paralytic  attack  shortly  before  the  execution  of  the 
will,  it  was  held  improper  to  prove  by  an  expert  that, 
in  nine  cases  out  of  ten,  paralysis  did  not  produce 
any  effect  upon  the  mind.2  If  it  had  been  shown 
that  it  in  no  case  affected  the  mind  the  ruling  would 
have  been  different. 

§71.  Opinions  Concerning  the  Discretion  of  a 
Person  of  Non-age. — We  have  seen  that  the  opinions 
of  even  non-expert  witnesses  are  received  in  evidence 
on  the  question  of  sanity.  And  the  question  has 
been  raised  whether  a  like  ruling  should  be  made 
where  the  question  arises  whether  a  person  of  non- 
age is  possessed  of  such  a  degree  of  discretion  as  to 
make  him  amenable  to  the  criminal  law.  In  a  case 
in  the  Court  of  Appeals  of  Texas  proof  was  made  of 
the  non-age  of  the  accused  at  the  time  of  the  com- 
mission of  the  offense.  It,  therefore,  became  neces- 
sary for  the  State  to  prove  affirmatively  that  the  boy 
had  sufficient  discretion  to  understand  the  nature 
and  the  illegality  of  the  act  constituting  the  crime 
alleged.  To  do  this  the  State  placed  witnesses  on 
the  stand  who  expressed  the  opinion  that  the  accused 
was  possessed  of  sufficient  discretion  to  know  that  it 
was  wrong  and  illegal  to  do  the  act  complained  of — 

1  Townsend  v.  Pepperell,  99  Mass.  40. 

2  Lands  v.  Lands,  1  Grant  (Penn.),  248. 


EXAMINATION  OF  PERSON  AS  TO  IMPOTENCY.       171 

that  he  knew  right  from  wrong — and  that  the  act  done 
was  a  punishable  crime.  The  boy  was  somewhat 
past  twelve  years  of  age.  The  Court  of  Appeals  held 
that  these  opinions  were  properly  received.  ''We 
hold,  therefore,"  they  say,  "that  it  was  not  error  to 
permit  the  witnesses  to  state  their  opinions  that  the 
defendant,  at  the  time  of  the  commission  of  the 
burglary,  had  sufficient  discretion  to  understand  the 
nature  and  illegality  of  the  acts  constituting  that 
crime,  said  witnesses  having  stated  the  facts  upon 
which  their  opinions  were  based;  that  is,  their  ac- 
quaintance with  the  defendant;  that  he  was  a  bright 
boy,  could  read  and  write,  etc.  As  to  the  weight 
to  be  given  to  these  opinions,  that  was  a  matter  for 
the  jury  to  consider  and  determine,  and  does  not 
relate  to  the  admissibility  of  the  opinions  as  evi- 
dence."1 

§  72.  Right  to  Order  an  Examination  of  the  Per- 
son by  Medical  Experts  in  Cases  of  Alleged  Impotency. 
— Wherever  impotency  has  been  acknowledged  as 
an  impediment  to  marriage,  the  courts  have  com- 
pelled the  parties,  in  proceedings  to  obtain  a  decree 
of 'nullity,  to  submit  their  persons  to  an  examination 
by  experts,  whenever  such  an  examination  was  nec- 
essary for  the  purpose  of  determining  the  fact  of 
impotency.  This  arises  from  the  necessity  of  the 
case,  especially  in  the  case  of  females,  for  impotency 
on  the  part  of  the  female,  which  cannot  be  cured 
by  proper  medical  treatment  or  a  surgical  operation, 
is  said  to  be  very  rare.  Divorce  for  the  impotency 
of  the  female  is  limited  to  cases  of  an  impervious  or 
supposed  impervious  vagina,  from  an  original  mal- 
formation, or  the  effect  of  some  supervening  infirmity 

1  Carr  v.  State.  24  Tex.  Ct.  of  App.  562. 


172  EXPERT    TESTIMONY. 

or  disease,  as  mere  sterility  is  not  sufficient  ground 
for  a  decree  of  nullity.  "From  the  very  nature  of 
the  case,  it  appears  to  be  impossible  to  ascertain 
the  fact  of  incurable  impotency,  especially  where 
the  husband  is  the  complaining  party,  except  by  a 
proper  surgical  examination  by  skillful  and  compe- 
tent surgeons  in  connection  with  other  testimony. 
*  *  *  And  I  have  no  doubt  as  to  the  power  of 
this  court  to  compel  the  parties,  in  such  a  suit,  to 
'  submit  to  a  surgical  examination,  whenever  it  is 
necessary  to  ascertain  facts  which  are  essential  to 
the  proper  decision  of  the  cause."  As  it  is  essen- 
tial that  the  impotency  should  be  incurable,2  it  is 
necessary  that  the  fact  of  incurability  should  be 
made  out  by  the  evidence  of  experts  who  have  made 
a  personal  examination.  The  right  of  the  court  to 
order  such  an  examination,  and  the  necessity  for 
making  such  order,  can  no  longer  be  considered  as 
involved  in  any  doubt  whatever.3  And  where  the 
wife  is  the  plaintiff,  and  the  libel  states  her  to  have 
been  a  spinster  at  the  time  of  the  marriage,  it  is 
usual  to  order  an  inspection  of  her  person,  as  well 
as  that  of  the  husband,  because  her  virginity  and 
capacity  implies  his  impotency.* 

§  73.  Who  should  be  Appointed  to  Make  the  Ex- 
amination.— According  to  the  English  practice  the 
inspection  was  intrusted  to  three  medical  experts, 
either  two  physicians  and  a  surgeon,  or  two  sur- 
geons and  a  physician,  the  adverse  party  having 

1  Devenbagh  v.  Devenbagh,  5  Paige,  554. 

2  Brown  v.  Brown,  1  Haggard.  523. 

3Briggs  v.  Morgan,  3  Phillimore,  325;  Welde  v.  Welde,  2  Lee,  580; 

H v.  P—  -  (L.  R.),  3  Prob.  &  Div.  126;  G v.  G—  -  (L. 

R.),  2  Prub.  &  Div.  287;  Xewell  v.  Newell,  9  Paige,  26;  Anon.  35  Ala. 
226. 

4  Coote's  E«'C.  Pr.  367.     And  see  Xortou  v.  Seton,  3  Phillimore.  147. 


COMPULSORY    EXAMINATION.  173 

the  privilege  of  naming  one  or  more.1  But  in  Welde 
v.  Welde,*  decided  in  1830,  the  inspection  of  the 
wife  was  made  by  midwives,  while  that  of  the  hus- 
band was  by  physicians.  In  this  country  we  find 
Chancellor  WALWORTH  declaring  that  the  examina- 
tion should  be  made  by  "physicians  of  intelligence 
or  skill,  who  by  study  or  practice  have  made  them- 
selves well  acquainted  with  the  nature  and  progress 
of  the  disease  which  has  caused  the  defendant's  in- 
capacity." And  in  this  same  case  the  Chancellor 
said:  "The  defendant  must  therefore  submit  to  such 
an  examination  by  one  or  more  respectable  gentle- 
men of  the  medical  profession,  who  may  be  named 
for  that  purpose  by  the  husband,  with  the  sanction 
of  the  court.  *  *  *  Such  medical  attendants  as 
she  may  think  proper  to  call  in  are  also  to  be  pres- 
ent at  the  time  of  her  examination  by  the  complain- 
ant's professional  .witnesses."  In  another  case  it 
is  said  that  in  the  selection  of  the  experts  due  re- 
gard will  be  paid  to  the  feeling  and  the  wishes  of 
the  defendant.4  Proper  respect  for  the  feelings  of 
the  party  to  be  examined  requires  that  the  number 
of  the  experts  appointed  to  make  the  examination 
should  be  restricted  to  the  smallest  number  consist- 
ent with  the  interests  of  justice. 

§  74.      When    Compulsory     Examination     in     such 

Cases  will  not  be  Ordered. — Where  the  party  against 
whom  impotency  is  alleged,  has  already  submitted 
to  an  examination  of  competent  physicians,  whose 
testimony  can  be  readily  obtained,  it  is  said  that  a 


1  Coote's  Ecc.  Prac.  3S8.    And  see  Dean  v.  Aveling,  1  Robertson,  279. 

2  2  Lee,  580. 

3  Xewell  v.  Newell,  9  Paige,  2G. 

4  Devenbagh  v.  Devenbagh,  5  Paige.  554,  558. 


174  EXPERT   TESTIMONY. 

further  examination  will  not  be  insisted  on.1  But 
where  the  wife  claimed  that  her  incapacity  existed 
now,  but  not  at  the  time  of  the  marriage,  and  to 
prove  her  claim  produced  the  certificate  of  two 
medical  gentlemen  who  had  examined  her  recently, 
expressing  their  belief  that  the  incapacity  had  arisen 
since  the  marriage,  Chancellor  WALWORTH,  upon 
the  application  of  the  husband,  ordered  another 
examination,  declaring  that  under  the  peculiar  cir- 
cumstances of  the  case,  the  complainant  ought  not 
to  be  compelled  to  leave  the  decision  of  his  cause 
to  rest  solely  upon  the  ex  parte  examination  made 
•by  the  physicians  selected  by  the  wife.2 

§  75.  Summoning  Experts  to  Assist  in  Determin- 
ing: the  Proper  Interrogatories. — The  usual  practice 
in  such  cases  has  been  to  direct  a  reference  to  a 
master,  to  take  the  testimony  and  report  thereon. 
And  when  the  parties  do  not  agree  as  to  the  inter- 
rogatories to  be  propounded  on  the  examination, 
they  must  be  settled  by  the  master,  who  may  sum- 
mon physicians  or  surgeons  to  assist  him  in  deter- 
mining the  necessary  interrogatories.  It  is  necessary 
that  the  defendant,  in  connection  writh  the  exami- 
nation by  the  experts,  should  answer  all  needful 
inquiries  propounded  by  them,  and  the  answers 
should  be  given  under  oath.  This  subject  was  con- 
sidered by  Chancellor  WALWORTH  at  an  early  day  in 
New  York.  "The  interrogatories  to  be  propounded 
to  her  (the  defendant),"  he  says,  "must  be  such 
only  as  relate  to  this  alleged  incapacity,  and  the 
commencement  and  progress  of  the  disease  by  which 
it  has  probably  been  produced.  And  if  the  parties 

1  Brown  v.  Brown,  1  Haggard,  523,  note  a;  Devenbagh  v.  Devenbagh, 
5  Paige,  544,  558. 

2  Newell  v.  Newell,  9  Paige,  26. 


STRUCTURAL    DEFECT.  175 

cannot  agree  upon  the  proper  interrogatories,  after 
having  consulted  with  their  physicians  on  the  sub- 
ject, the  master  in  settling  the  interrogatories  to  be 
propounded  to  the  defendant  in  connection  with  her 
examination  by  medical  gentlemen,  is  to  be  at  lib- 
erty to  summon  before  him,  and  examine  on  oath, 
any  physicians  or  surgeons,  to  enable  him  to  decide 
what  interrogatories  may  be  necessary  or  proper  to 
be  allowed."1 

§  76.      The  Subject  of  Inquiry  —  Structural   Defect 
— Impracticability   of   Consummation. — The   inquiry 

of  the  experts  is  to  be  directed  not  merely  to  the 
discovery  of  whether  a  structural  defect  exists.  It 
is  possible  that  although  no  structural  defect  exists, 
the  case  may  show  the  impracticability  of  consum- 
mation. In  a  recent  case  in  England,2  a  divorce 
was  obtained,  where  the  professional  witnesses  swore 
that  no  structural  defect  existed,  but  there  was  an 
impracticability  of  consummation.  As  this  is  im- 
portant, we  quote  the  language  of  the  court:  "The 
impossibility  must  be  practical.  It  cannot  be  nec- 
essary to  show  that  the  woman  is  so  formed  that 
connection  is  physically  impossible,  if  it  can  be 
shown  that  it  is  possible  only  under  conditions  to 
which  the  husband  would  not  be  justified  in  resort- 
ing. The  absence  of  a  physical  structural  defect 
cannot  be  sufficient  to  render  a  marriage  valid,  if  it 
be  shown  that  connection  is  practically  impossible, 
or  even  if  it  be  shown  that  it  is  only  practicable 
after  a  remedy  has  been  applied,  which  the  husband 
cannot  enforce,  and  which  the  wife,  whether  wilfully 
or  acting  under  the  influence  of  hysteria,  will  not 

1  Xewell  v.  New  ell.  9  Paige  (N.  Y.),  26,  27. 

2  G v.  G ,  2  Prob.  &  Div.  (L.  R.)  281. 


176  EXPERT   TESTIMONY. 

submit  to."  But  a  merely  wilful  and  wrongful  re- 
fusal of  marital  intercourse  will  never  justify  a 
decree  of  nullity  by  reason  of  impotence,  although 
if  persisted  in  long  enough,  the  court  may  infer  that 
it  arises  from  incapacity/ 

§  77.  Defraying1  the  Expenses  of  the  Examination 
by  the  Experts. — The  husband  must,  of  course,  fur- 
nish all  the  necessary  funds  to  pay  the  expenses  of 
the  surgical  examination.3  If  the  wife  refuses  to 
submit  herself  to  the  examination  ordered  by  the 
court,  the  allowance  of  her  alimony  may  be  sus- 
pended until  she  consents  to  the  examination  as 
directed.4  And  either  party  refusing  to  submit  to 
such  an  examination,  might  undoubtedly  be  pun- 
ished for  contempt  of  court.5  But  as  a  refusal  to 
submit  to  the  examination  has  been  regarded  as 
evidence  of  incapacity,6  a  party  will  perhaps  ordi- 
narily hesitate  before  refusing  compliance  with  the 
order  of  the  court  in  such  cases. 

§  78.      Compulsory  Examination  in  Criminal  Cases. 

— Whether  the  court  has  power  to  order  a  compul- 
sory examination  by  experts  of  the  person  of  a  de- 
fendant in  a  criminal  proceeding,  is  an  important 
question  which  has  been  somewhat  considered  by 
the  courts,  and  upon  which  a  difference  of  opinion 
exists.  The  question  turns  on  the  construction  to 

• 

'See  also  P—      -  v.  L ,3  Prob.  Division   (L.  K.),  73,  note  2; 

H—    —v.  P ,  3  Prob.  &  Div.  (L.  R.)  126. 

2  S—    -  v.  A ,  3  Probate  Division  (L.  R.) ,  72. 

8  Devenbagh  v.  Devenbagh,  5  Paige,  554,  558. 

4  Newell  v.  Xewell,  9  Paige,  26. 

5  See  Schroeder  v.  C.,  R.  L,  etc.  R.  Co.,  47  Iowa,  375. 

6  Harrison  v.  Harrison,  4  Moore,  P.  C.  96,  103,  Lord  Brougham's  opin- 
ion.   See,  too,  H—     -  v.  P—   — ,  3  Prob.   &  Div.  (L.  R.)   126.    The 
court  should  be  satisfied,  however,  that  there  was  no  collusion  between 
the  parties.    Pollard  v.  Wyborn,  1  Hagg.  Ecc.  R.  725;  Sparrow  v.  Har- 
rison, 3  Curteis,  16. 


EXAMINATION    IX    CRIMINAL    CASES.  177 

be  placed  on  the  constitutional  provisions  which 
provide  that  the  accused  shall  not  be  compelled  to 
give  evidence  against  himself  in  any  criminal  case. 
Such  a  provision  is  found  in  the  Constitution  of 
the  United  States,  and  in  the  Constitution  of  the 
several  States,  with  hardly  an  exception.  In  Jacob's 
Case1  the  Supreme  Court  of  North  Carolina,  in  1858, 
held  that  a  defendant  could  not  be  compelled  to 
exhibit  himself  to  the  inspection  of  a  jury  for  the 
purpose  of  enabling  them  to  determine  his  status  as 
a  free  negro.  And  this  ruling  was  approved  by  the 
same  court  in  Johnson's  Case1  in  1872.  Two  years 
later  the  subject  again  came  up  in  the  same  court 
in  Garret's  Case.3  In  that  case  it  appeared  that  the 
defendant  had  stated  to  persons  present  on  the 
night  of  the  homicide,  that  the  deceased  came  to 
her  death  by  her  clothes  accidently  catching  fire 
while  the  deceased  was  asleep,  and  that  she,  the 
defendant,  in  attempting  to  put  out  the  flames 
burnt  one  of  her  hands.  At  the  coroner's  inquest 
the  defendant  was  compelled  to  unwrap  the  hand 
which  she  had  stated  was  burnt,  and  exhibit  it  to  a 
physician,  in  order  that  he  might  see  whether  there 
was  any  indication  of  burn  upon  it.  And  it  was 
held  that  the  actual  condition  of  her  hand,  although 
she  was  ordered  by  the  coroner  to  exhibit  it  to  the 
doctor,  was  admissible  evidence.  Jacob's  Case  was 
distinguished  as  follows:  "The  distinction  between 
that  and  our  case  is  that  in  Jacob's  Case,  the  pris- 
oner himself,  on  trial,  was  compelled  to  exhibit  him- 
self to  the  jury,  that  they  might  see  that  he  was 

1  5  Jones,  259. 

2  67  1ST.  C.  58. 

3  71  N.  C.  58. 

(12) 


178  EXPERT   TESTIMONY. 

within  the  prohibited  degree  of  color ;  thus  he  was 
forced  to  become  a  witness  against  himself.  This 
was  held  to  be  error.  In  our  case,  not  the  prisoner, 
but  the  witnesses,  were  called  to  prove  what  they 
saw  upon  inspecting  the  prisoner's  hand,  although 
that  inspection  was  obtained  by  intimidation."  In 
Nevada  it  has  been  held  that  the  court  could  lawfully 
compel  a  criminal  defendant,  against  his  objection, 
to  exhibit  his  bare  arm,  for  the  purpose  of  determin- 
ing whether  it  had  on  it  certain  tattoo  marks.  The 
question  of  identity  was  raised,  and  a  witness  had 
testified  that  he  kneAv  the  defendant,  and  knew  that 
he  had  tattoo  marks  (describing  them)  on  his  right 
fore-arm.1  This  is  one  of  the  best  considered  cases 
on  this  side  of  the  question.  The  court  declared 
that  the  Constitution  prohibited  the  State  from  com- 
pelling a  defendant  to  be  a  witness  against  himself, 
because  it  was  believed  that  he  might,  by  the  flat- 
tery of  hope  or  suspicion  of  fear,  be  induced  to  tell 
a  falsehood,  and  that  this  reason  was  inapplicable 
to  an  examination  of  the  person,  which  could  not 
in  the  very  nature  of  things  lead  to  a  falsehood. 
"The  Constitution  means,"  said  the  court,  "just 
what  a  fair  and  reasonable  interpretation  of  its  lan- 
guage imports.  No  person  shall  be  compelled  to  be 
a  witness,  that  is,  to  testify,  against  himself.  To  use 
the  common  phrase,  '  it  closes  the  mouth  '  of  the 
prisoner.  A  defendant  in  a  criminal  case  cannot  be 
compelled  to  give  evidence  under  oath  or  affirma- 
tion, or  make  any  statement  for  the  purpose  of  prov- 
ing or  disproving  any  question  at  issue  before  any 
tribunal,  court,  judge,  or  magistrate." 

The  same  question  was  similarly  decided  in  t*he 

1  State  v.  Ah  Chuey,  14  Nev.  79;  s.  c.,  1  Cr.  Law  Mag.  034. 


EXAMINATION    IN    CRIMINAL    CASES.  179 

Court  of  Appeals  of  Texas,  in  1879,  although  the 
question  was  presented  in  a  different  form.  In  that 
case  testimony  was  held  admissible  that  the  foot- 
prints, which  the  prisoner  was  compelled  to  make  in 
an  ash  heap,  corresponded  with  those  made  on  the 
night  of  the  murder  about  the  premises  of  the  de- 
ceased.1 And  a  similar  ruling  on  a  similar  state  of 
facts  was  made  in  North  Carolina.2  But  a  different 
conclusion  has  been  reached  in  Georgia,3  and  in 
Tennessee4  on  a  like  state  of  facts.  In  Michi- 
gan, on  the  trial  of  one  for  burglary,  a  rub- 
ber shoe  was  produced,  and  when  the  prisoner  took 
the  stand  in  his  own  behalf  he  was  asked  to  try  it 
on,  which  he  did  without  objection.  He  was  then 
asked  to  measure  it,  and  his  counsel  objected,  but 
the  objection  was  overruled,  and  he  made  the  meas- 
urement and  stated  the  result.  The  court  held  that 
if  there  had  been  any  objection  made  to  the  pris- 
oner's trying  on  the  shoe  the  court  would  have  had 
no  authority  to  require  it ;  and  that  even  the 
simple  matter  of  measurement  he  might  have 
declined  had  he  seen  fit.5  And  in  New  York 
the  subject  was  presented  in  a  case  which  in- 
volved the  question  whether  the  prisoner  had 
been  delivered  of  a  child.  The  coroner  directed 
two  physicians  to  go  to  the  jail  and  make  an 
examination  of  the  woman,  and  determine  whether 
she  had  recently  been  delivered  of  a  child  or  not. 
She  denied  having  been  pregnant,  and  objected  to 


1  Walker  v.  State,  7  Tex.  Ct.  of  App.  245,  265. 

2  State  v.  Graham,  74  N.  C.  646;  s.  c.,  21  Am.  Rep.  493. 

3  Day  v.  State,  63  Ga.  667;  Blackwell  v.  State,  67  Ga.  76;  s.  C.,  3  Cr. 
Law  Mag.  394. 

4  Stokes  v.  State,  5  Baxt.  519;  s.  c.,  30  Am.  Rep.  72. 

5  People  v.  Mead,  50  Mich.  228,  231. 


180  EXPERT    TESTIMONY. 

being  examined  by  the  physicians.  But  on.  being 
told  that  if  she  did  not  submit  to  the  examination 
she  would  be  compelled  to  submit  by  force,  she 
yielded,  and  her  private  parts  were  examined  by  the 
physicians  with  a  speculum,  and  they  examined  her 
breasts.  The  court  refused  to  allow  the  physicians 
to  testify,  declaring  that  such  an  examination  was  a 
violation  of  the  spirit  and  meaning  of  the  Constitu- 
tion, which  declares  that  ''no  person  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against 
himself."  "They  might  as  well  have  sworn  the 
prisoner,  and  compelled  her  by  threats  to  testify 
that  she  had  been  pregnant  and  been  delivered  of 
the  child,  as  to  have  compelled  her  by  threats  to 
allow  them  to  look  into  her  person,  with  the  aid  of 
a  speculum,  to  ascertain  whether  she  had  been  preg- 
nant and  had  been  recently  delivered  of  a  child." 
In  a  recent  case  in  Iowa  a  physician  made  an  ex- 
amination of  the  face  and  neck  of  the  defendant 
while  in  jail,  and  testified  that  he  found  several 
scratches.  At  the  trial  the  defendant  did  not  object 
to  the  admission  of  the  testimony,  but  on  appeal  he 
insisted  that  there  was  error  in  admitting  it,  and 
claimed  that  the  testimony  was  in  respect  to  an  ex- 
amination to  which  he  was  compelled  to  submit, 
and  that  such  examination  was  in  violation  of  his 
constitutional  rights,  and  that  being  so  that  the  ad- 
mission of  the  testimony  was  error,  even  though  not 
objected  to.  The  court  reply  ing  to  this  say:  "With- 
out considering  the  legal  questions  suggested,  it  is 
sufficient  to  say  that  we  see  no  evidence  that  the  de- 
fendant was  compelled  to  submit  to  an  examination. 
It  is  true  the  evidence  shows,  that  when  Dr.  Har- 

1  People  v.  McCoy,  45  How.  Pr.  216. 


COMPULSORY    EXAMINATION.  181 

man  went  into  the  jail,  the  sheriff  accompanied  him, 
but  there  is  no  evidence  that  the  sheriff  did  or  said 
anything  in  respect  to  the  examination.  We  think 
that  there  is  no  error  in  admitting  the  evidence."1 

It  will  be  observed  that  in  some  of  the  cases  in  which 
the  question  has  been  considered,  the  right  to  order 
an  examination  of  the  person  by  experts  was  not 
directly  involved,  but  they  all  involve  the  same 
principle,  and  it  has  been  necessary  to  consider  them 
all  in  this  connection.  The  result  of  the  examina- 
tion of  the  cases  shows  a  decided  conflict  of  author- 
ities, and  that  the  question  is  still  unsettled  and 
open. 

§  79.  Compulsory  Examination  in  Actions  for 
Damages. — In  actions  brought  for  the  recovery  of 
damages  for  personal  injuries,  the  courts  have,  in 
some  cases,  on  the  application  of  the  defendant, 
compelled  the  plaintiff  to  submit  his  person  to  an 
examination  by  physicians  and  surgeons  for  the  pur- 
pose of  ascertaining  the  character  and  extent  of  his 
injuries.  The  purpose  of  all  judicial  inquiries  should 
be  the  ascertainment  of  the  facts  to  the  end  that 
there  may  be  an  administration  of  justice.  It  is 
difficult  to  see,  therefore,  why,  in  civil  actions, 
it  should  not  be  at  least  within  the  discre- 
tion of  a  trial  court  in  proper  cases  and  un- 
der proper  safeguards  to  direct  the  plaintiff 
to  submit  his  person  to  medical  inspection.  And 
this  view  of  the  matter  has  been  taken  by  some 
of  the  courts.  Thus,  in  a  case  in  Iowa,  the  court 
declared  that  refusal  to  submit  to  an  examination 
so  ordered  would  render  the  party  liable  to  punish- 
ment for  contempt  of  court,  and  if  continued  so  long 

1  State  v.  Struble,  71  Iowa.  11, 16. 


182  EXPERT   TESTIMONY. 

as  to  effectively  obstruct  the  progress  of  the  case,  all 
allegations  as  to  personal  injury  might  be  stricken 
from  the  pleadings.  And  it  is  declared  that,  "un- 
der the  explicit  directions  of  the  court,  the  physicians 
should  have  been  restrained  from  imperiling  in  any 
degree  the  life  or  health  of  the  plaintiff.  The  use 
of  anaesthetics,  opiates  or  drugs  of  any  kind,  should 
have  been  forbidden,  if  indeed  it  had  been  proposed, 
and  it  should  have  prescribed  that  he  should  be  sub- 
jected to  no  tests  painful  in  their  character."  The 
above  case  was  decided  in  1877,  and  the  conclusion 
reached  was  arrived  at  irrespective  of  authority,  the 
court  declaring  that  it  was  unable  to  find  any  case 
in  which  the  question  had  been  considered.  But 
the  same  question  had  been  considered  in  New  York 
in  1868,  and  it  was  there  held  that  the  court,  in  an 
action  for  malpractice  against  a  surgeon,  could  com- 
pel the  plaintiff  to  submit  her  person  to  an  examina- 
tion at  the  hands  of  the  defendant's  experts.2  "It 
is  not  proper, ' '  said  the  court,  '  'that  the  cause  should 
be  left  to  be  determined  on  the  evidence  of  two  or 

i 

1  Schroder  v.  The  R.  I.  &  P.  R.  R.  Co.,  47  Iowa,  375. 

2  Walsh  v.  Sayre,  52  How.  Pr.  334.    The  complaint  alleged  that  the 
defendant,  in  treating  the  plaintiff  for  the  injury  in  the  neighborhood  of 
her  hips,  had  so  negligently  and  unskillfully  as  to  puncture  the  joint, 
causing  the  synovial  fluid  which  lubricates  the  cartilaginous  surface  of 
the  joint  to  escape,  thereby  seriously  and  permanently  injuring  the  hip. 
and  rendering  the  whole  leg  useless,  and  perhaps  rendering  its  amputa- 
tion necessary.    The  defendant  petitioned  the  court,  stating  that,  since 
the  commencement  of  the  action,  he  had  endeavored  to  obtain  leave  to 
make  a  professional  examination  of  the  affected  part,  but  had  been  re- 
fused permission  so  to  do.    That  he  could  not  safely  proceed  to  trial, 
nor  properly  defend  the  action,  unless  he  could  have  a  personal  inspec- 
tion and  professional  examination  of  the  affected  parts,  and  praying  that 
said  examination  and  personal  inspection  by  himself  and  such   other 
skillful  and  eminent  surgeons  as  he  might  name  might  be  had  under  the 
direction  of  the  sheriff,  or  a  referee  appointed  for  that  purpose,  at  such 
time  and  place,  and  in  such  form  or  manner,  as  to  the  court  might  seem 
just  and  proper. 


COMPULSORY    EXAMINATION.  183 

three  surgeons,  selected  by  the  plaintiff  out  of  the 
whole  body  of  surgeons,  perhaps  because  their  views 
are  adverse  to  the  defendant's;  but  it  is  eminently 
proper  that  defendant  should  have  the  benefit  of  the 
testimony  of  one  or  two  surgeons  of  his  own  selec- 
tion, and  that  these  surgeons  should  have  the  re- 
quisite means  of  forming  a  correct  judgment,  one  of 
which  is  the  examination  of  the  affected  part." 
There  are  other  cases  to  the  same  effect.1 

The  cases  above  referred  to  recognize  the  power 
of  the  court  in  its  discretion  to  order  such  an  inspec- 
tion. But  in  one  instance  at  least  the  defendant 
has  been  recognized  as  being  entitled  as  matter  of 
right  to  have  such  an  order  made.  In  that  case  it 
was  declared  that  where  the  plaintiff  in  such  an  ac- 
tion alleges  his  injuries  to  be  of  a  permanent  nature, 
the  defendant  is  entitled  as  a  matter  of  right  rather 
than  of  favor  to  have  the  court  order  the  plaintiff  to 
submit  his  person  to  the  examination  of  a  surgeon, 
unless  there  is  already  so  much  expert  evidence  in 
the  case  that  the  court  in  its  discretion  may  decline 
to  make  the  order.2 

But  there  are  cases  in  which  the  power  of  the 
court  to  make  such  an  order  has  been  denied. 
The  question  was  considered  in  Missouri  in  1873, 
in  an  action  against  a  railroad  company  for  personal 
injuries.  The  point  raised  was  summarily  disposed 
of  in  the  opinion,  the  power  to  order  the  examination 
being  denied.  The  court  merely  said:  "The  proposal 

1  White  v.  Milwaukee,  etc.  R.  R.  Co.,  61  Wis.  536;  Miami,  etc.  R.  R. 
Co.  v.  Baily,  37  Ohio  St.  104;  Shephard  v.  Missouri,  etc.  R.  R.  Co.,  85 
Mo.  629;  Atchison,  etc.  R.  R.  Co.  v  Thul,  29  Kan.  466;  International, 
etc.  R.  R.  Co.  v.  Underwood,  64  Tex.  464;  Missouri  Pacific, etc.  R.R. 
Co.  v.  Johnson,  72  Tex.  95. 

2  Sibley  v.  Smith,  46  Ark.  275. 


184  EXPERT   TESTIMONY. 

to  the  court  to  call  in  two  surgeons  and  have  the 
plaintiff  examined  during  the  progress  of  the  trial, 
as  to  the  extent  of  her  injuries,  is  unknown  to  our 
practice  and  to  the  law.  There  was  abundant  ev- 
idence on  this  subject  on  both  sides;  any  opinion  of 
physicians  or  surgeons  at  the  time  would  have  only 
been  cumulative  evidence  at  best,  and  the  court  had 
no  power  to  enforce  such  an  order."  That  case  has 
been  since  overruled.2  In  Illinois  the  right  to  order 
such  an  examination  was  also  denied,  but  there  also 
the  matter  was  disposed  of  without  discussion.3 
There  are  a  few  other  cases  to  the  same  effect.* 

In  a  recent  case  in  Indiana,  it  was  held  no  error 
to  decline  to  order  a  submission  to  examination 
when  the  application  was  made  by  the  defendant 
after  the  plaintiff  had  closed  his  evidence.  The 
court  say:  "It  is  undoubtedly  true  that  the  court 
may  in  its  discretion,  in  a  proper  case,  if  applica- 
tion is  seasonably  made,  require  the  plaintiff  to 
submit  his  person  to  a  reasonable  examination,  by 
competent  physicians  and  surgeons,  when  necessary 
to  ascertain  the  nature,  extent  and  permanency  of 
injuries  ;  but  where  the  application  is  not  made 
until  after  the  close  of  the  plaintiffs  evidence,  and 
no  reason  is  shown  for  the  delay  in  making  the  ap- 
plication, it  will  not  be  error  to  refuse  the  order, 
especially  where  the  plaintiff  offers  to  submit  to  a 
private  examination  as  soon  as  the  attendance  of 
medical  experts  on  his  behalf  can  be  secured." 

1  Loyd  v.  Hannibal,  etc.  R.  R.  Co.,  53  Mo.  509,  515,  516. 

2  Shephard  v.  Missouri,  etc.  R.  R.  Co.,  85  Mo.  629. 

3  Parker  v.  Enslow,  102  HI.  272,  279. 

*  Roberts  v.  Ogdensburgh,  etc.  R.  R.  Co.,  29  Hun  (N.  Y.),  154;  Stu- 
art v.  Haven,  17  Neb.  214;  Sioux  City,  etc.  R.  R.  Co.  v.  Finlayson,  16 
Neb.  578,  588. 

5  Hess  v.  Lowrey  (Sup.  Ct.  Ind.  1890),  7  L.  R.  A.  90. 


REFUSAL    TO    BE    EXAMINED.  1  *•"> 

When  the  action  is  not  brought  to  recover  dam- 
ages for  the  injury  done  to  the  person,  but  is  for 
an  injury  to  the  character  of  another,  a  different 
question  is  presented.  Thus,  where  an  action  for 
slander  was  brought  by  an  unmarried  woman,  it 
having  been  alleged  that  the  defendant  had  spoken 
of  the  plaintiff  that  she  was  a  whore,  and  had  be- 
come pregnant,  and  had  suffered  an  abortion  to  be 
procured  upon  her,  it  was  held  that  the  defendant 
was  not  entitled,  under  a  plea  of  justification,  to  an 
order  requiring  the  plaintiff  to  submit  her  person  to 
an  examination  by  medical  experts.1  The  court  de- 
clared: "One  should  not  publish  and  circulate 
slanderous  charges  against  a  young  unmarried  fe- 
male, *  *  unless  he  is  able  to  substantiate  them 
when  called  upon  to  do  so,  without  calling  upon 
the  court  to  aid  in  the  search  for  evidence  in  his  be- 
half by  ordering  and  subjecting  her  to  an  indelicate 
examination  of  her  person,  with  the  hope  of  obtain- 
ing some  information  advantageous  to  the  defense, 
and  calling  to  his  aid  the  power  of  the  court  as  a 
means  of  humiliating  her  still  more."  The  court 
declared  it  had  not  been  cited  to  any  case  where 
such  an  examination  had  been  held  proper,  and 
added  that  it  thought  no  such  case  could  be  found. 

§  80.  Refusal  to  be  Examined  by  a  Particular  Ex- 
pert who  is  Personally  Obnoxious. — In  a  case  where 
the  trial  court,  on  application  of  the  defendant,  had 
ordered  the  plaintiff  to  submit  to  an  examination  of 
his  person,  the  defendant  selected  two  medical  ex- 
perts to  make  the  examination,  to  one  of  whom  the 
plaintiff  objected,  stating  that  he  declined  to  be  ex- 
amined by  the  objectionable  physician,  or  in  his 

1  Kern  v.  Bridwell,  119  Ind.  226. 


186  EXPERT    TESTIMONY. 

presence,  at  the  same  time  stating  that  his  declina- 
tion was  based  on  his  "personal  aversion"  to  the 
expert  in  question,  adding  that  he  tendered  himself 
for  examination  by  the  other  expert  and  any  other 
respectable  physician  and  his  own  consulting  physi- 
cian whom  he  desired  to  be  present.  Thereupon  the 
defendant  called  the  attention  of  the  court  to  its  or- 
der, and  to  the  refusal  as  above  stated,  and  asked 
the  court  to  enforce  its  order  and  require  the  plaint- 
iff to  submit  to  the  examination  of  the  two  physi- 
cians whom  the  defendant  had  selected,  including 
the  obnoxious  one  above  referred  to.  The  court  de- 
clined to  enforce  its  order,  saying  it  would  not  com- 
pel the  plaintiff  to  submit  to  an  examination  by  a 
physician  to  whom  he  had  personal  aversion.  On 
appeal  the  Supreme  Court  held  that  the  trial  court 
did  not  err  in  refusing  to  compel  the  plaintiff  to  be 
examined  by  a  physician  towards  whom  he  had  a 
personal  aversion,  although  his  objection  did  not  go 
to  the  competency  or  integrity  of  the  physician  pro- 
posed.1 

When  a  court  intends  to  order  a  party  to  submit 
to  a  personal  examination,  the  better  plan  would 
seem  to  be  for  the  court  to  appoint  one  or  more  dis- 
interested experts  either  of  its  own  selection,  or,  bet- 
ter yet,  such  as  may  be  agreed  upon  by  both  parties. 

§  81 .  The  Opinions  of  Medical  Men  in  Miscellane- 
ous Cases. — We  have  stated  that  the  opinions  of 
medical  experts  are  admissible  in  evidence  upon 
questions  that  are  strictly  and  legitimately  embraced 
in  their  profession  and  practice.  The  application  of 
this  principle  made  by  the  courts  in  certain  miscel- 
laneous cases  may  be  helpful,  and  will  here  be 

1  Missouri  Pacific  R.  R.  Co.  v.  Johnson,  72  Tex.  95,  101,  (1888)  . 


OPINIONS  IN  MISCELLANEOUS  CASES.      187 

given.  Their  opinions  have  been  held  admissible 
as  to  the  tendency  of  an  overflow  of  water  upon 
premises  to  create  sickness;1  as  to  the  permanency 
of  a  person's  loss  of  vision;2  as  to  the  condition  of 
the  body  of  the  deceased  as  to  fullness  or  paucity  of 
blood;3  upon  the  question  of  whether  it  be  good 
medical  practice  to  withhold  from  a  patient  in  a 
particular  emergency,  or  under  given  or  supposed 
circumstances,  a  knowledge  of  the  danger  and  ex- 
tent of  his  disease;4  as  to  the  condition  of  human  re- 
mains after  burial;  as  to  how  long  before  decay 
would  set  in,  and  when  it  would  be  complete;5 
whether  a  certain  routine  of  diet  was  injurious  to 
the  health  of  children;6  as  to  the  manner  in  which 
prolapsus  uteri  would  be  caused,  and  the  degree  of 
violence  that  would  produce  it;7  whether  the  appear- 
ance of  the  extravasated  blood  in  the  neck  was  an 
indication  of  mechanical  violence  or  disease,  and 
whether  the  clot  of  blood  found  on  the  post-mortem 
examination  could  have  existed  twelve  hours  with- 
out causing  death;8  whether  a  child  was  a  "full  time 
child;"9  as  to  what  indications  would  have  been 
found, on  the  post-mortem  examination  of  a  body 
taken  from  the  water,  if  the  person  had  been  suffo- 
cated first  and  then  had  fallen  into  the  water;10  as 
to  the  curability  of  a  disease,  the  nature  and  cause 


1  City  of  Eufaula  v.  Simmons,  86  Ala.  515. 

2  Tiuney  v.  New  Jersey  Steamboat  Co.,  12  Abb.  Pr.  (X.  S.)  1. 

3  O'Mara  v.  Commonwealth,  75  Pa.  St.  424. 

4  Twombly  v.  Leach,  11  Gush.  405. 
8  State  v.  Secrest,  SO  X.  C.  450,  453. 

6  Crowley  v.  People,  83  X.  Y.  464,  471. 

7  Napier  v.  Ferguson,  2  P.  &  B.  (New  Brunswick)  415. 

8  State  v.  Pike,  65  Me.  Ill,  114. 

9  Young  v.  Makepeace,  103  Mass.  50. 

10  Erickson  v.  Smith,  2  Abb.  App.  Decis.  (X.  Y.)  64. 


188  EXPERT    TESTIMONY. 

of  which  he  has  described;1  whether  a  certain  wound 
given  on  the  chest  endangered  life;8  as  to  the  in- 
juries likely  to  be  produced  under  a  given  state  of 
facts,  the  precise  facts  being  stated;3  as  to  the  sex  of 
a  person  from  an  examination  of  the  skeleton,  al- 
though it  is  an  error  to  receive  the  opinion  of  a  non- 
professional  witness  on  such  a  question;4  and 
whether  a  child  would  have  been  born  alive  if  it 
had  received  medical  assistance  in  time.5  A  med- 
ical expert  can  be  asked  as  to  what  in  his  judgment 
was  the  probability  of  recovery,  assuming  such  and 
such  symptons  and  condition;6  and  as  to  whether  a 
certain  injury  was  likely  to  produce  or  be  followed 
by  certain  diseases,7  it  being  always  proper  to  ask  a 
medical  expert  as  to  the  future  consequences  which 
are  expected  to  follow  the  injury  complained  of.8  A 
medical  witness  can  always  testify  concerning  the 
nature  and  extent  of  an  injury.9  They  have  been 
allowed  to  testify  whether  fright  would  produce 
heart  trouble.10 

§  82.  Opinions  of  Non-Professional  Witnesses  on 
Questions  Belated  to  Medical  Science. — We  will  COn- 
sider  first  the  cases  in  which  such  opinions  have 
been  received.  A  physical  fact  within  the  experi- 
ence of  a  witness  is  not  so  much  a  scientific  question 

1  Matteson  v.  New  York,  etc.  R.  R.  Co.,  35  N.  Y.  487. 

2  Rumsey  v.  People,  19  N.  Y.  41. 

3  Wendell  v.  Troy,  39  Barb.  (N.  Y.)  329. 
*  Wilson  v.  State,  41  Tex.  320,  321. 

5  Western  Union  Telegraph  Co.  v.  Cooper,  71  Tex.  507,  512. 

6  Peterson  v.  Chicago,  etc.  R.  R.  Co.,  38  Mian.  511;  Grisvvold  v-  New 
York,  etc.  R.  R.  Co.,  23  N.  Y.  Sup.  R.  729. 

7  Kelly  v.  Erie  Telegraph  &  Telephone  Co.,  34  Minn.  321. 

8  Strohm  v.  New  York,  etc.  R.  R.  Co..  96  N.  Y.  305. 

9  Evansville,  etc.  R.  R.  Co.  v.  Crist,  116  Ind.  446 ;  Louisville,  etc.  R.  R . 
Co.  v.  Snider,  117  Jnd.  435. 

10  Illinois  Central  R.  R.  Co.  v.  Latimer  (111  ;,  21  N.  E.  Rep.  7. 


OPINIONS    RELATED    TO    MEDICAL    SCIENCE.          189 

as  to  exclude  non-expert  testimony.1  A  person  may 
therefor  testify  as  to  his  pain,  suffering,  or  internal 
condition,  so  far  as  the  same  is  perceptible  to  his 
senses.2  He  may  testify  as  to  the  immediate  phys- 
ical consequences  of  an  injury  received  by  him.3 
Such  evidence  is  considered  to  relate  to  facts  and 
not  to  be  mere  opinion.  It  is  not  necessary,  there- 
fore, that  a  person  should  be  an  expert  in  order  to 
testify  that  his  own  ribs  were  broken;4  or  that  a 
certain  substance  takes  away  the  pain  of  filling 
teeth,  the  substance  having  been  used  on  him.5 

Not  only  may  a  non-expert  thus  testify  concern- 
ing his  own  condition,  but  he  may  testify  concern- 
ing the  health  and  physical  condition  of  another, 
whom  he  has  had  an  opportunity  of  observing.6 
Thus,  such  a  witness  may  state  that  a  third  person 
was  sick,7  or  in  poor  health,8  or  was  formerly  in 
good  health,9  and  then  grew  worse,10  or  appeared  to 
be  well  or  ill.11  It  has  been  held  in  Pennsylvania 
that  while  a  non-expert  witness  cannot  testify  that  a 
person  was  afflicted  with  a  special  disease,  yet  he 
may  testify  that  he  observed  in  such  person  a  con- 

1  Bragg  v.  City  of  Moberly,  17  Mo.  App.  221 :   Dolan  v.  City  of  Mo- 
berly,  17  Mo.  App.  436. 

2  Wright  v.  City  of  Fort  Howard,  60  Wis.  119. 

3  Bland  v.  S.  P.  R.  R.  Co.,  65  Cal.  626. 

4  Ferguson  v.  Davis  Co.,  57  Iowa,  601. 

5  Reeve  v.  Dennett,  145  Mass.  23. 

6  Carthage  Turnpike  Co.  v.  Andrews,  102  Ind.  138. 

7  Chicago,  etc.  R.  R.  Co.  v.  George,  19  111.  510,515;  Bennett  v.  Fail, 
26  Ala.  605;  Barker  v.  Coleman,  35  Ala.  221;  Stone  v.  Watson,  37  Ala. 
279;  Higbie  v.  Guardian  Mutual  Life  Ins.  Co.,  53  N".  Y.   603;  Shawnee- 
towu  v.  Mason,  82  111.  337.     See  Thompson  v.  Bertrand,  23  Ark.  730. 

8  Carthage  Turnpike  Co.  v.  Andrews,  102  Ind.  138. 

9  Smalley  v.  Appleton,  70  Wis.  340:  Parker  v.  Boston  Steamboat  Co., 
109  Mass.  449,  distinguishing  Ashland  v.  Marlborough,  99  Mass.  48. 

10  Louisville,  etc.  R.  R.  Co.  v.  Wood,  113  Ind.  544. 

11  Canady  v.  Lynch,  27  Minn.  435;  AVilkenson  v.  Mosely,  30  Ala.  562. 


190  EXPERT    TESTIMONY. 

dition  which  was  in  fact  a  symptom  of  the  disease.1 
A  wife  has  been  permitted  t»  testify  that  her  hus- 
band had  a  rupture,  the  testimony  being  received 
upon  the  theory  that  it  was  not  a  fact  resting  in 
opinion,  and  that  its  determination  did  not  involve 
any  question  of  science  or  skill.2  And  a  husband 
has  been  allowed  to  testify  that  he  thought 
his  wife's  limb  was  broken.3  In  Alabama  it 
is  said  that  any  person  may  speak  of  the  ex- 
istence of  disease  in  another  when  the  disease 
is  perceptible  by  the  senses.4  It  seems  that  a 
person  who  is  not  a  physician  may  testify  whether  it 
was  necessary  for  a  party  to  receive  medical  assist- 
ance, and  it  has  been  even  said  that  he  may  testify 
as  to  the  length  of  time  such  assistance  was  neces- 
sary. It  was  said  that  "in  a  question  of  this  kind, 
any  person  of  intelligence  is  capable  of  judging  of 
the  necessity  of  medical  advice  and  services.  It  is 
universally  acted  upon  by  all  classes  of  mankind, 
and  we  are  not  disposed  to  lay  down  a  rule  that 
none  but  a  physician  is  competent  to  prove  that  a 
person  is  sick,  or  so  sick  as  to  require  medical  advice. ' ' 
And  a  non-expert  has  been  permitted  to  testify  as 
to  his  opinion  concerning  the  soundness  of  a  slave, 
stating  the  facts  upon  which  his  opinion  was 
founded.6  On  a  trial  under  an  indictment  for  in- 
fanticide, a  non-professional  witness  who  examined 
the  dead  bodv  of  the  child  was  allowed  to  testify 


1  United  Brethren  Mut.  Aid  Society  v.  O'Hara,  120  Pa.  St.  256. 

2  Duntz  v.  Van  Beuren,  12  N.  Y.  Sup.  Ct.  648. 
s  Go?hen  v.  England  (Ind.),  21  N.  E.  Rep.  077. 

4  Milton  v.  Rowland.  11  Ala.   732;    Fountain  v.  Brown,  38  Ala.   72; 
Wilkeson  v.  Mosely,  30  Ala.  562. 

5  Chicago  ttc.  R.  R.  v.  George.  19  111.  510. 
i;  Norton  v.  Moore,  40  Tenn.  483. 


OPINIONS    RELATED    TO    MEDICAL    SCIENCE.  191 

that  he  "considered  it  fully  developed" — this  being 
considered  a  matter  of  fact  open  to  observation,  and 
the  witness  being  subject  to  cross-examination  as  to 
his  use  of  the  words  and  his  knowledge  of  their 
meaning.1  Such  a  witness  having  seen  the  wounded 
person  has  been  allowed  to  describe  the  wound  as 
being  inflamed  and  tender  to  the  touch; *  and  to 
testify  as  to  the  condition  of  a  person's  health  and 
body  before  and  after  an  injury.3  Non-expert  wit- 
nesses have  been  allowed  to  say  whether  a  person 
has  had  the  full  use  of  his  arm  since  a  certain  in- 
jury, and  has  been  able  to  work;4  and  such  witnesses 
can  testify  to  a  person's  changed  appearance  since 
an  injury.5 

The  right  of  an  ordinary  witness  to  express  an 
opinion  concerning  the  mental  condition  of  another 
has  been  previously  considered.6 

We  will  now  consider  the  cases  in  which  the  opin- 
ions of  non-professional  witnesses  have  not  been  re- 
ceived. As  a  rule  one  who  is  not  skilled  in  the 
science  or  practice  of  medicine,  is  not  competent  to 
express  an  opinion  that  a  person  is  afflicted  with  a 
particular  disease,7  or  whether  there  was  any  case  of  a 
particular  disease  in  a  certain  neighborhood.8  The 
opinions  of  unprofessional  witnesses  have  been  held 
inadmissible  on  the  question  whether  a  woman  had 

1  Hubbard  v.  State,  72  Ala.  164. 

2  Craig  v.  Gerrish,  58  N.  H.  513. 

3  Townsdin  v.  Nutt,  19  Kan.  282. 

4  Harris  v.  Detroit,  etc.  R.  R.  Co.  (Mich.),  42  N.  W.  Rep.  1111. 

5  Bridge  v.  Oshkosh,  71  Wis.  363;  Weber  v.  Creston,  75  Iowa,  16. 

6  See  section  66. 

•  Lush  v.  Mi-Daniel,  13  Ired.  (N.  C.),  485;  Thompson  v.  Bert-and,  23 
Ark.  730;  Chicago,  etc.  R.  R.  Co.  v.  George,  19  111.  510,  516;  Shawnee- 
town  v.  Mason,  82111.  337,  339;  U.  B.  Mutual  Aid  Society  v.  O'Hara, 
120  Pa.  St.  256. 

s  Evans  v.  People,  12  Mich.  27. 


192  EXPERT    TESTIMONY. 

been  pregnant.1  A  non-professional  witness  who 
had  known  the  injured  person  for  a  number  of  years 
before  the  accident  and  who  was  with  such  person 
several  weeks  thereafter,  has  not  been  allowed  to 
give  an  opinion  as  to  the  effect  of  the  injury  upon 
such  person's  health.2  The  fact  that  one  who  is  not 
a  physician  or  surgeon  has  been  held  incompetent 
to  express  an  opinion  as  to  the  instrument  with 
which  a  wound  was  made  is  elsewhere  considered.3 
In  a  case  in  Michigan  the  court  says:  "No  witness, 
medical  or  otherwise,  can  be  allowed  to  give  testi- 
mony from  his  observation  concerning  the  nature  of 
a  person's  illness  or  its  causes  without  proof,  both 
of  a  sufficient  examination  and  such  knowledge  or 
experience  as  will  qualify  him  to  offer  an  opinion." 

A  daughter,  who  was  not  an  expert,  has  been  held 
incompetent  to  testify  that  her  mother  suffered  in 
her  head  and  stomach.5  And  the  testimony  of 
workmen,  not  shown  to  be  experts,  that  certain  in- 
fected rags  were  the  cause  of  small-pox,  which  they 
or  their  children  had  taken,  has  been  held  incom- 
petent.6 On  a  trial  for  murder  where  the  defense 
was  insanity,  the  defendant's  mother  testified  that 
he  had  fits  when  a  child,  but  she  was  held  incom- 
petent to  answer  the  question  as  to  what  effect  the 
fits  had  on  him.7 

§  83.  Experts  in  the  Diseases  of  Animals. — No 
question  is  made  but  that  a  veterinary  surgeon  is 
competent  to  express  an  opinion  as  an  expert  as  to 

1  Boies  v.  McAllister,  12  Me.  310. 

2  Monongahela  Water  Co.  v.  Stewartson,  96  Pa.  St.  436. 

3  See  section  52. 

4  People  v.  Olmstead,  30  Mich.  434. 

s  Lombard,  etc.  R.  R.  Co.  v.  Christian,  124  Pa.  St.  114. 

6  Dushane  v.  Benedict,  120  U.  S.  647. 

7  State  v.  Hockett,  70  Iowa,  442. 


KKPERTS    IN    DISEASES    OF    ANIMALS.  193 

the  condition  and  diseases  of  animals.1 .  But  a  per- 
son who  is  not  a  veterinary  surgeon  may  give  testi- 
mony in  such  cases.  The  courts  have  found  it  nec- 
essary to  establish  a  somewhat  liberal  rule  as  to  the 
competency  of  persons  to  give  evidence  on  the  sub- 
ject of  diseases  in  animals,  and  it  is  not  required 
that  the  witness,  to  be  competent,  should  have 
made  the  treatment  of  diseases  in  domestic  animals 
a  distinct  profession.  All  that  is  insisted  on  is  that 
the  witness  should  have  had  much  experience  with 
such  diseases  and  with  their  treatment.  He  is  then 
allowed  to  state  the  facts  and  express  an  opinion 
based  thereon/  In  a  case  in  Indiana  a  witness,  who 
was  not  a  farrier,  was  called  to  testify  as  to  the  dis- 
ease of  the  eyes  of  a  horse.  The  witness  professed 
to  understand  when  he  examined  a  horse  whether 
his  eyes  were  good  or  not,  though  he  acknowledged 
that  there  might  be  diseases  of  the  eyes  of  horses 
with  which  he  was  unacquainted.  He  was  asked, 
whether,  from  his  knowledge  of  the  diseases  of 
horses'  eyes,  he  believed  the  disease  of  the  eyes  of  the 
horse  in  question  had  been  of  long  standing,  and 
had  existed  before  the  exchange  of  horses  made  by 
the  parties.  It  was  held  that  he  should  be  permit- 
ted to  answer,  and  it  was  said:  "We  have  scarcely 
any  veterinary  surgeons  in  our  country,  and  the 
opinipns  of  men  of  such  knowledge  as  this  witness 
appears  to  have,  must  be  admitted  in  cases  like  the 
present." 

1  Missouri  Pacific  R.  R.  Co.  v.  Finley,  38  Kan.  550;  Pinney  v.  Cahill,. 
48  Mich.  584. 

-  See  Slater  v.  Wilcox,  57  Barb.  604,  608;  Vates  v.  Cornelius,  59  Wi<- 
615;  Johnson  v.  Moffit,  19  Mo.  App.  159;  Peer  v.  Ryan,  54  Mich.  224. 

3  House  v.  Fort,  4  Black! .  (Ind.)  293. 

(13) 


194  EXPERT   TESTIMONY. 

But  a  perston  who  is  not  a  physician,  surgeon  or 
veterinarian,  and  who  has  had  no  particular  ex- 
perience with  cattle,  but  whose  knowledge  is  de- 
rived simply  from  reading  and  some  little  observa- 
tion, has  been  held  not  competent  to  testify  as  an 
expert  in  relation  to  disease  nranimals.1 

It  has  been  held  that  witnesses  cannot  testify  that 
whistling  in  horses  is  an  unsoundness,  or  that  it  is 
universally  considered  so  among*horsemen,  that  be- 
ing a  question  for  the  jury.2  The  same  case  holds 
that  a  veterinary  surgeon  who  has  ridden  after  and 
seen  a  horse  driven  may  testify  "whether  he  saw  any 
indications  about  him  of  being  a  whistler. 

It  has  been  held  not  competent  to  introduce  the 
testimony  of  a  veterinary  surgeon  that  horses  fre- 
quently fall  down  and  die  instantly  without  any  ap- 
parent cause,  such  evidence  not  being  in  the  nature 
of  an  expert  opinion.3 

1  Missouri  Pacific  R.  R.  Co.  v.  Finley,  38  Kan.  550. 

2  Moore  v.  Haviland  (Vermont),  17  Atl.  Rep.  725. 
• 3  McPherrin  v.  Jennings,  66  Iowa,  622. 


THE    LAW    AS    A    SUBJECT.  195 


CHAPTER  V. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW. 

SECTION. 

84.  The  Law  as  a  Subject  for  the  Testimony  of  Experts. 

85.  Of  what  Laws  Courts  take  Judicial  Notice,  and  Expert  Testimony 

is  not  Received. 

86.  Of  what  Laws  Courts  do  not  take  Judicial  Notice,  and  Expert 

Testimony  may  be  Received. 

87.  Proof  of  the  Unwritten  Law  of  a  Foreign  State. 

88.  Proof  by  Experts  of  the  Written  Law  of  Foreign  States— Al- 

lowed in  England. 

89.  Manner  of  Proof  in  the  United  States  of  the  Written  Law  of 

Foreign  States. 

90.  Proving  the  Writen  Law,  in  the  Discretion  of  the  Court,  by  the 

Testimony  of  Experts. 

91.  Expert  Testimony  as  to  the  Construction  and  Interpretation  of 

Written  Law. 

92.  Presumption  that  Law  is  Unwritten. 

93.  Presumption  that  the  Law  Remains  Unchanged. 

94.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law. 

95.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law — The 

Rule  in  England. 

96.  Where  Knowledge  of  the  Foreign  Law  must  have  been  Acquired. 

97.  Right  of  Expert  to  Cite  Text  Books,  Decisions,  Codes,  etc. 

98.  How  these  Citations  are  to  be  Regarded. 

99.  Whether  the  Question  of  Foreign  Law  is  for  the  Court  or  Jury. 

100.  Testimony  as  to  Usage  and  Practice  of  Courts  of  Another  State. 

101.  Testimony  as  to  Powers  and  Obligations  of  an  Attorney  in  his 

Relations  to  his  Clients. 

102.  The  Value  of  Legal  Services. 

§    84.      The  Law  as  a   Subject  for  the   Testimony  of 
Experts. — From  the  earliest  times  it  seems  to  have 


196  EXPERT   TESTIMONY. 

been  the  practice  of  the  English  judges  to  receive, 
in  certain  cases,  the  opinions  of  persons  skilled  in 
the  law.  As  early  as  the  time  of  Henry  VI.,  in 
a  case  which  involved  a  question  relating  to  civil 
law,  we  find  it  laid  down  that  the  common-law 
judges  heard  a  bachelor  of  the  civil  law  "argue  and 
discourse  upon  the  difference  between  compulsion^ 
prsecisa  et  causativa,  as  men  that  were  not  above  be- 
ing instructed  and  made  wiser  by  him."  And  in 
another  case  during  the  same  reign,  Avhere  ex  com- 
mengement  had  been  pleaded,  and  the  party  answered 
that  he  ought  not  to  be  disabled  thereby  as  an  ap- 
peal was  pending,  the  common-law  judges  inquired 
of  those  who  were  well  versed  in  the  canon  law, 
touching  the  question  involved.2 

§  85.  Of  what  Laws  Courts  take  Judicial  Notice, 
and  Expert  Testimony  is  not  Received. — Since  ex- 
perts will  not,  as  a  general  rule,  be  examined  con- 
cerning such  laws,  as  the  courts  take  judicial  notice 
of,3  it  is  important  to  distinguish  between  the  laws 
which  will  be  judicially  noticed,  and  those  which 
must  be  proved  as  facts,  when  advantage  of  them  is 
desired. 

I.  We  shall  consider  first,  then,  those  laws  of  which 
courts  take  judicial  notice,  and  concerning  which, 
therefore,  the  testimony  of  experts  will  not  be  re- 
ceived, as  not  being  necessary  for  the  information 
of  the  court.  Such  laws  are: 

1.  The  law  of  nations/ 

2.  The  law  merchant.5 


1  7  Henry  VL,  11. 

2  20  Henry  VI.,  25. 

s  Jewell  v.  Center,  25  Ala.  498,  505;  The  Clement,  2  Curtis,  363". 

4  The  Scotia.  14  Wall.  171,  188. 

5  Ed. lie  v.  Ea>t  India   Co.,  2  Burr.  ]22G:  Jewell  v.  Center,  25  Ala.  408; 


WHAT  LAWS  COURTS  TAKE  JUDICIAL  NOTICE.       197 

3.  The  maritime  law,  so  far  at  least  as  recognized 
by  the  law  of  nations.1 

4.  The  ecclesiastical  law,  for  the  purpose  of  de- 
termining how  far  it  is  a  part  of  the  common  law.1 

5.  The  courts  of  a  State  which  has  been  carved 
out  of  another  State,  take  judicial  notice  of  the  stat- 
utes of  the  latter  State  passed  prior  to  the  separa- 
tion.3 

6.  All  courts  take  judicial  notice  of  their  do- 
mestic law.4 

7.  The  courts  of  a  State  will  take  notice  of  the 
common  law  of  England  without  proof,  not  because 
it  is  the  common  law  of  a  foreign  country,  but  be- 
cause that  common  law  is  a  part  of  our  domestic 
law.5 

8.  The  State  courts  take  judicial  notice  of  the 
Federal  Constitution,  and  of  its  amendments,6  as 
well  as  of  Federal  statutes.7 

Bradford  v.  Cooper,  1  La.  Ann.  325;  Goldsmith  v.  Sawyer,  46  Cal.  209. 
The  case  last  cited  holds  that  where  a  board  of  brokers  have  rules,  which 
are  not  rules  or  usages  of  trade  and  commerce  that  would  be  recognized 
without  their  adoption  by  the  board,  these  will  not  be  judicially  noticed, 
but  must  be  shown  by  experts  therein. 

1  Chandler  v.  Grieves,  2  H.  Bl.  606,  n;  Maddox  v.  Fisher,  14  Moore, 
P.  C.  103;  Zugasti  v.  Lamer,  12  Moore,  P.  C.  331 ;  The  Scotia,  14  Wall. 
171, 188;  Taylor  on  Evidence,  §  5;  Wharton  on  Evidence,  §  298. 

1  Sims  v.  Maryatt,  17  Q.  B.  (79  E.  C.  L.)  292;  1  Roll.  Abr.  526;  6  Vin. 
Abr.  496. 

3  Delano  v.  Jopling,  1  Litt.  (Ky.)  417;  Stokes  v.  Macker,  62  Barb.  (N. 
Y.)  145;  Doe  v.  Eslava,  11  Ala.  1028;  Chouteau  v.  Pierre,  9  Mo.  3;  Ott 
v.  Soulard,  9  Mo.  581 ;  United  States  v.  Turner,  11  How.  663,  668;  City 
of  Brownsville  v.  Cavazos,  2  Woods,  293. 

4  State  v.  Jarrett.  17  Md.  309;  State  v.  O'Conner,  13  La.  Ann.  486; 
Pierson  v.  Baird,  2  Greene  (Iowa),  235;  Berliner  v.  Waterloo,  14  Wis. 
378;  Springfield  v.  Worcester,  2  Gush.  (Mass.)  52;  Division  of  Howard 
County,  15  Kan.  194;  Dolph  v.  Barney,  5  Oreg.  191. 

5  Owen  v.  Boyle,  15  Me.  147. 151. 

6  Graves  v.  Keaton,  3  Coldw.  (43  Tenn.)  8. 

7  Kessel  v.  Albertis,  56  Barb.  (X.  Y.)  362;  Papin  v.  Ryan,  32  Mo.  21 ; 
Morris  v.  Davidson,  49  Ga.  361 ;  Rice's  Succession,  21  La.  Ann.  614,  616; 


198  EXPERT    TESTIMONY. 

9.  The  Federal  courts  take  judicial  notice  of  the 
laws  of  the  several  States  composing  the  national 
government.1 

§  86.  Of  what  Laws  Courts  do  not  take  Judicial 
Notice,  and  Expert  Testimony  may  be  Received. — II. 
In  passing,  in  the  second  place,  to  the  consideration 
of  those  laws  which  will  not  be  judicially  noticed, 
and  as  to  Avhich  experts  may,  therefore,  testify,  we 
find: 

1.  That  courts  do  not  take  judicial  notice  of  the 
laws  of  foreign  countries.2  As  said  by  Lord  LANG- 
DALE:  "With  foreign  laws  an  English  judge 
cannot  be  familiar;  there  are  many  of  which  he 
must  be  totally  ignorant ;  there  is,  in  every  case  of 
foreign  law,  an  absence  of  all  the  accurate  knowledge 
and  ready  associations  which  assist  him  in  the  con- 
sideration of  that  which  is  the  English  law."  So 
in  this  country  Mr.  Chief  Justice  MARSHALL  re- 
marked:  "The  laws  of  a  foreign  nation  designed 
only  for  the  direction  of  its  own  affairs  are  not  to 
be  noticed  by  the  courts  of  other  countries,  unless 
proved  as  facts."4 

Bayly  v.  Chubb,  16  Grattan  (Va.),  284;  Mims  v.  Svvartz,  37  Tex.  13; 
Jones  v.  Laney,  2  Tex.  342 ;  Semple  v.  Hager,  27  Cal.  163 ;  United  States 
v  De  Coursey,  1  Pinney  (Wis.),  508;  Montgomery  v.  Deeley,  3  Wis.  709, 
712. 

1  Junction  Railroad  Co.  v.  Bank  of  Ashland,  12  Wall.  226,229;    Ben- 
nett v.  Bennett,  Deady,  299, 311 ;  Merrill  v.  Dawson,  Hempstead,  563 ; 
Smith  v.  Tallapoosa  Co.,  2  Woods,  574,  576;  United  States  v.  Turner,  11 
How.  663,  668;  O wings  v.  Hull,  9  Pet.  607. 

2  Freemoult  v.  Dedire,  1  P.  Wms.430;  Feaubert  v.  Turst,  Pre.  Ch.  207; 
Mostyn  v.  Farrigas,  Cowp.  174;  Male  v.  Roberts,  3  Esp.  163;  Smith  v. 
Gould,  4  Moore,  P.  C.  21;   Strother  v.  Lucas,  6  Pet.  763;  Armstrong  v. 
Lear,  8  Pet.  52;    United   States  v.  Wiggins,  14  Pet.  334;    Damess  v. 
Hale,  1  Otto,  13;  Bowdicht  v.  Soltvk,  99  MHSS.  138;  Owen  v.  Boyle,  15 
Me.  147;   Hosford  v.  Nichols,  1  Pai^e  (X.  Y.),  220;   McCraney  v.  Al- 
den,  46  Barb.  (N.  Y.)  274;  Monroe  v.  Douglass  5  N.  Y.  447,  452. 

3  Nelson  v.  Bridgport,  8  Beavan,  527. 

4  Talbot  v.  Seeman,  1  Cranch,  38. 


LAWS  COURTS  DO  NOT  TAKE  NOTICE  OF.    199 

2.  That  the  courts  of  one  State  will  not  take 
judicial  notice  of  the  laws  of  any  other  State.  This 
is  upon  the  theory  that  the  separate  States  which 
together  constitute  the  nation  are,  as  respects  their 
political  relations  to  each  other,  essentially  "foreign" 
countries,  whose  laws  must  be  proved  as  facts.1  At 
an  early  day  it  was  held  in  Vermont,  that  judicial 
notice  would  be  taken  of  the  laws  of  sister  States.2 
But  that  doctrine  was  subsequently  overruled.3  In 
an  early  case  in  New  Jersey,  a  similar  doctrine  was 
intimated,4  but  the  dicta  in  that  case  have  also  been 
overruled  in  later  cases  in  the  same  court.5  A  sim- 
ilar position  was  taken  at  an  early  day  in  Tennessee, 


1  Drake  v.  Glover,  30  Ala.  382;   Mobile  Railroad  Co.  v.  Whitney,  39 
Ala.  468 ;  Forsyth  v.  Freer,  62  Ala.  443 ;  Newton  v.  Cocke,  10  Ark.  169 ; 
Hempstead  v.  Reed,  6  Conn.  480 ;  Brackett  v.  Norton,  4  Conn.  517 ;  Dyer 
v.  Smith,   12  Conn.  384;    Bailey  v.   McDowell,   2  Harring.  (Del.)  34; 
Stanford  v.  Pruet,  27  Ga.  243;  Mason  v.  Wash,  Breese  (111.),  39;  Irving 
v.  McLean,  4  Blackf.  (Ind.)  52;  Davis  v.  Rogers.  14  Ind.  424;  Johnson 
v.  Chambers,  12  Ind.  112;  Carey  v.  Cincinnati,  etc.  R.  R.  Co.,  5  Iowa, 
357;  Taylor  v.  Runyan,  9  Iowa,  522;  Shed  v.  Augustine,  14  Kan.  282; 
Beauchamp  v.  Mudd,  Hardin  (Ky.),  163;   Stephenson  v.  Bannister,  3 
Bibb.  (Ky.)  369;  Dorsey  v.  Dorsey,  5  J.  J.  Marsh.  (Ky.)  280;  Tyler  v. 
Trabue,  8  B.  Mon.  (Ky.)  606;  Syme  v.  Stewart,  17  La.  Ann.  73;  Ander- 
son v.  Folger,  11  La.  Ann.  269;  Legg  v.  Legg,  8  Mass.  99;    Knapp  v. 
Abell,  10  Allen   (Mass.),  485;  Brimhall  v.  Van  Campen,  8  Minn.  13; 
Hoyt  v.  McXeil,  13  Minn.  390;  Hemphill  v.  Bank  of  Alabama,  6  Sin.  & 
M.  (Miss.)  44;  Babcock  v.  Babcock,  46  Mo.  243;  Morrissey  v.  Wiggins 
Ferry  Co.,  47  Mo.  521;  Ball  v.  Consolidated  Franklin,  etc.  Co.,  32  N.  J. 
Law,  102,  10 i;  Uhler  v.  Semple,  5  C.  E.  Green  (N.  J.),  288;  Campion 
v.  Kille,  1  McCarter  (N.  J.),  229;  Hosford  v.  Nichols,  1  Paige  (N.  Y.), 
220;  State  v.  T witty,  2  Hawks  (N.  C.),  248;  State  v.  Surtly,  2  Hawks 
(N.  C.),  441;  Evans  v.  Reynolds,  32  Ohio  St.  163;  Ripple  v.  Ripple,  1 
Rawle  (Penn.),  386;  Whitesides  v.  Poole,  9  Rich.  (S.  C.)  68;  Jones  v. 
Laney,  2  Tex.  342;  Anderson  v.  Anderson.  23  Tex.  639;  Rape  v.  Heaton, 
9  Wis.  328;  Territt  v.  Woodruff,  19  Vt.  183;  Woodrow  v.  O'Conner,  28 
Vt.  776;  Walsh  v.  Dart,  12  Wis.  635. 

2  Middlebury  Coll.  v.  Cheney,  1  Vt.  348. 

3  Territt  v.  Woodruff,  19  Vt.  182;  Woodrow  v.  O'Conner,  28  Vt.  776. 

4  Curtis  v.  Martin,  2  N.  J.  Law,  290. 

5  Van  Buskirk  v.  Mulock,  18  N.  J.  Law,  184. 


200  EXPERT    TESTIMONY. 

and  has  been  ever  since  maintained.1  And  now, 
under  the  code  of  that  State,  the  Supreme  Court 
takes  judicial  notice  of  all  foreign  laws  and  statutes.2 
In  a  recent  case  in  Rhode  Island,  the  court  took 
judicial  notice  of  a  law  of  the  State  of  New  York.3 
An  exception  should  perhaps  be  made  to  the  general 
rule,  in  so  far  that  where  a  State  recognizes  acts 
done  in  pursuance  of  the  laws  of  another  State,  the 
courts  of  the  first  State  should  take  judicial  cogni- 
zance of  the  said  laws,  so  far  as  may  be  necessary  to 
judge  of  the  acts  alleged  to  be  done  under  them. 
And  it  has  been  so  held.4  In  a  case  in  Penn- 
sylvania, it  was  held  that  a  State  court,  when  its 
judgment  would  be  liable  to  review  by  the  Supreme 
Court  of  the  United  States,  in  a  case  arising  under 
the  law  of  a  sister  State,  would  take  judicial  notice 
of  such. law.6  It  has  been  held  in  Kansas  that  the 
constitutions  of  sister  States  will  be  judicially  no- 
ticed.6 Where  it  is  desired  to  introduce  evidence  of 
the  laws  of  other  States,  it  is,  of  course,  necessary 
that  they  should  be  pleaded.7 

§  87.  Proof  of  the  Unwritten  Law  of  a  Foreign 
state. — Proof  of  the  unwritten  law  of  a  foreign  State 
may  be  made  by  the  parol  testimony  of  experts. 
This  principle  is  everywhere  recognized.8  The  ques- 


1  Foster  v.  Taylor,  2  Over.  191;  Coffee  v.  Neely,  2  Heisk.  311;  Hobbs 
v.  Railroad  Co.,  9  Heisk.  873. 

2  See  Hobbs  v.  Memphis,  etc.  R.  R.  Co.,  56  Tenn.  874. 

3  Paine  v.  Schenectady  Ins  Co.,  11  R.  I.  411. 

4  Carpenter  v.  Dexter,  8  Wall.  513. 

3  State  v.  Hinchman,  27  Pa.  St.  479. 

8  Butcher  v.  Bank,  2  Kan.  70;  Dodge  v.  Coffin,  15  Kan.  277. 

"  Root  v.  Merriwether,  8  Bush  ^Ky.),401;  Peck  v.  Hibbard,  26  Vt. 
698. 

8  Ennis  v.  Smith,  14  How.  400,  426 ;  Baltimore,  etc.  R.  R.  Co.  v.  Glenn, 
2s  Md.  287;  Hebard  v.  Myers,  5  Ind.  €4;  People  v.  Lambert,  5  Mich.  349; 


PROOF    BY    EXPERTS    OF    THE    WRITTEN    LAW.       201 

tion  of  the  competency  of  the  witness,  the  qualifica- 
tions he  must  possess  in  order  to  give  such  testi- 
mony will  be  considered  in  a  subsequent  part  of  this 
chapter. 

In  many  of  the  States  it  has  been  provided  by 
statute  that  the  unwritten  law  of  other  States  may 
be  proved  not  only  by  parol  but  also  by  the  books 
of  reports  of  cases  adjudged  in  their  courts.1  And 
such  reports  have  been  received  as  evidence  in  Ala- 
bama, even  in  the  absence  of  such  statutes.2 

§  88.  Proof  by  Experts  of  the  Written  Law  of  For- 
eign States — Allowed  in  England. — The  practice  in 
England,  formerly  was  to  require  the  production  of 
the  written  law,  and  to  exclude  all  proof  of  it  by  the 
testimony  of  experts.  When  it  was  proposed  to  call 
a  person  conversant  with  the  law  of  Russia  as  to  the 
right  to  stop  goods  in  transitu,  Lord  KENYON  re- 
fused to  receive  his  testimony,  and  the  distinction 
between  written  and  unwritten  law  was  taken .  "Can 
the  laws  of  a  foreign  country,"  he  asks,  "be  proved 
by  a  person  who  may  be  casually  picked  up  in  the 
streets?  Can  a  court  of  justice  receive  such  evi- 
dence of  such  a  matter?  I  shall  expect  it  to  be 
made  out  to  me,  not  by  such  loose  evidence,  but  by 
proof  from  the  country  whose  laws  you  propose  to 


Merritt  v.  Merritt,  20  111.  65 ;  McRae  v.  Mattoon,  13  Pick.  (Mass.)  53 ;  Owen 
v.  Boyle,  15  Me.  147,  151 ;  Tyler  v.  Trabue,  8  B.  MOD.  (Ky.)  306. 

1  See  McClain's  Ann.  Code  of  Iowa  (1888),  vol.  2,  p.  1466.  §  4970;  Stat- 
utes of  Minnesota  (1878),  p.  800,  §  58;  Starr  v.  Curtis's  Ann.  St.  of  111., 
vol.  1,  p.  1081,  §  12;  Sanborn&  Berryman's  Ann.  St.  of  Wis.  (1889),  vol. 
2,  p.  2141,  §  4138;  Howell's  Ann.   St.  of  Mich.,  vol.  2,  p.  18S9,  §  7509; 
Ann.  St  of  Kan.,  vol.  2,  p.  1410,  §  4465. 

2  Inge  v.  Murphy,  10  Ala.  (X.  S.)  885,  896.  citing  the  following  cases: 
Dougherty  v.  Snyder,  15  S.  &  R.  85;  Raynbam  v.  Canton,  3  Pick.  293; 
McRae  v.  Mattoon,  13  Ib.  87;  Lattimore  v.  Elgin,  4  Dess.  26. 


202  EXPERT    TESTIMONY. 

give  in  evidence,  properly  authenticated."  Lord 
ELLENBOROUGH  also  refused  to  receive  parol  evi- 
dence as  to  the  law  of  Surinam,  and  declared  that 
the  law  being  in  writing,  an  authenticated  copy  of 
it  ought  to  be  produced.2  Chief  Justice  GIBBS,  in  a 
subsequent  case,  took  the  same  distinction  between 
the  written  and  unwritten  law,  declaring  that  a  copy 
of  the  former  must  be  produced.3  And  Sir  GEORGE 
HAY  had,  in  1776,  refused  to  accept  proof  of  foreign 
laws  "by  the  opinions  of  lawyers,  which  is  the  most 
uncertain  way  in  the  world,"  and  required  certifi- 
cates of  the  laws  to  be  laid  before  him.4  But  this 
doctrine  is  no  longer  observed  in  that  country,  and 
the  rule  is  now  to  regard  the  law  as  being  something 
distinct  from  statutory  or  common  law  taken  by 
themselves  merely.  It  is  considered  as  a  resultant 
of  the  lex  scripta  and  lex  non  scripta,  and  as  such  it 
is  to  be  proved  as  any  other  fact  of  science,  by  wit- 
nesses duly  qualified  by  learning  and  experience. 
As  early  as  1811  the  opinions  of  Scotch  advocates 
were  received  to  prove  the  law  of  Scotland,  although 
they  referred  to  printed  authorities  as  forming  the 
basis  of  their  opinions.5  It  was  not,  however,  until 
the  year  1845  that  the  principle  can  be  said  to  have 
become  settled,  of  admitting  expert  testimony  as  to 
law  considered  as  a  complex  resultant  of  the  written 
law,  and  its  interpretation  and  construction.  In 
that  year  a  French  advocate  was  permitted  to  tes- 
tify that  the  feudal  law  was  abolished  in  Alsace,  de 

1  Boehtlinck  v.  Schneider,  3  Esp.  58.  This  case  criticised  by  Lord  Den- 
man,  C.  J.,  in  Baron  De  Bode's  Case,  8  Ad.  &  Ellis  (N.  S.)  208. 

2  Clegg  v.  Levy,  3  Camp.  166. 

3  Millar  v.  Heinrick,  4  Camp.  155. 

4  Harford  v.  Morris,  2  Hagg.  430. 

5  Dalrymple  v.  Dalrymple,  2  Hagg.  54. 


PROOF    BY    EXPERTS    OF    THE    WRITTEN    LAW.        203 

facto,  in  1789,  by  the  revolution,  and  de  jure,  by  the 
treaty  of  Luneville;  and  that  a  formal  decree  existed 
abrogating  the  feudal  law.1  Lord  Chief  Justice 
DEXMAX,  in  sustaining  the  admission  of  the  testi- 
mony in  the  above  case,  said:  '  'There  is  another  gen- 
eral rule:  that  the  opinions  of  persons  of  science  must 
be  received  as  to  the  facts  of  their  science.  That  rule 
applies  to  the  evidence  of  legal  men;  and  I  think  it 
is  not  confined  to  unwritten  law,  but  extends  also  to 
the  written  laws  which  such  men  are  bound  to 
know.  Properly  speaking,  the  nature  of  such  evi- 
dence is  not  to  set  forth  the  contents  of  the  written 
law,  but  its  effect  and  the  state  of  the  law  resulting 
from  it.  The  mere  contents,  indeed,  might  often 
mislead  persons  not  familiar  with  the  particular  sys- 
tem of  law.  The  witness  is  called  upon  to  state 
what  law  does  result  from  the  evidence."  COLE- 
RIDGE, J.,  in  the  same  case,  alludes  to  the  difficulty 
of  understanding  the  written  laws  of  foreign 
countries  possessing  a  different  jurisprudence.  And 
in  the  opinion  of  WILLIAMS,  J.,  there  is  a  suggestion 
as  to  the  inability  to  obtain  copies  from  the  public 
authorities  of  foreign  countries.  The  principle  thus 
laid  down  was  followed  in  Earl  Nelson  v.  Lord 
Bridport,-  where  the  court  declares  that  although 
the  written  law  is  produced,  and  due  proof  made 
that  it  has  not  been  repealed,  varied,  or  fallen  into 
disuse,  and  that  the  words  have  been  accurately 
translated,  "still  the  words  require  due  construc- 
tion, and  the  construction  depends  on  the  meaning 
of  words  to  be  considered  with  reference  to  other 
words  not  contained  in  the  mere  text  of  the  law, 

1  Baron  De  Bode's  Case,  8  Ad.  &  Ellis  (N.  S.)  208. 

2  8  Beav.  527. 


204  EXPERT    TESTIMONY. 

and  also  with  reference  to  the  subject-matter,  which 
is  not  insulated  from  all  others.  The  construction 
may  have  been,  probably  has  been,  the  subject  of 
judicial  decision;  instead  of  one  decision,  there  may 
have  been  a  long  succession  of  decisions,  varying 
more  or  less  from  each  other,  and  ultimately  ending 
in  that  which  alone  ought  to  be  applied  in  the  par- 
ticular case."  It  is  evident  that  as  to  such  con- 
struction the  evidence  of  experts  is  required  for  the 
instruction  of  the  court.  And  Lord  BROUGHAM  de- 
clared in  the  House  of  Lords,  in  the  celebrated 
Sussex  Peerage  Case:1  "The  witness  may  refer  to 
the  sources  of  his  knowledge;  but  it  is  perfectly 
clear  that  the  proper  mode  of  proving  a  foreign  law 
is  not  by  showing  to  the  House  the  book  of  the  law; 
for  the  House  has  not  organs  to  know  and  to  deal 
with  the  text  of  that  law,  and  therefore  requires  the 
assistance  of  a  lawyer  who  knows  how  to  interpret 
it.  If  the  Code  Napoleon  was  before  a  French  court, 
that  court  would  know  how  to  deal  with  and  con- 
strue its  provisions,  but  in  England  we  have  no  such 
knowledge,  and  the  English  judges  must,  therefore, 
have  the  assistance  of  foreign  lawyers."  So  in 
another  case  the.  court  declares  that  the  proper 
course  to  be  pursued,  in  ascertaining  the  laws  of  a 
foreign  country,  is  to  call  a  witness  expert  in  such 
laws,  and  "ask  him,  on  his  responsibility,  what  the 
law  is,  and  not  to  read  any  fragment  of  a  code, 
which  would  only  mislead."  A  person  skilled  in 
the  laws  of  Bohemia  was  therefore  permitted, 
against  objection,  to  testify  as  to  the  written  la\vs 
of  that  country. 

1 11  ci.  &  F.  85,  us. 

2  Cocks  v.  Purday,  2  C.  &  K.  269. 


MANNER  OF  PROOF  AS  TO  WRITTEN  LAWS.    205 

§>  89.  Manner  of  Proof  in  the  United  States  of  the 
Written  Law  of  Foreign  States. — In  this  country  a 
distinction  is  taken  between  the  written  and  the 
unwritten  law,  and  while  the  latter  may  be  proven 
by  the  testimony  of  experts,  the  former  can,  in  gen- 
eral, only  be  shown  by  the  production  of  the  writ- 
ten law  itself,  duly  authenticated.1  In  an  early 
case,  Mr.  Chief  Justice  MARSHALL  said:  "That  no 
testimony  shall  be  received  that  presupposes  better 
testimony  attainable  by  the  party  who  offers  it,  ap- 
plies to  foreign  law,  as  it  does  to  all  other  facts." 
Upon  this  principle,  the  statute  itself  must  be  re- 
garded as  better  evidence  of  what  it  contains,  than 
is  the  testimony  of  any  individual  who,  though  he 
may  know  the  general  purport  of  the  law,  may  not 
carry  in  his  mind  so  minute  and  exact  a  knowledge 
thereof  as  is  often  necessary  for  its  proper  applica- 
tion. 

In  a  case  in  the  Supreme  Court  of  Michigan  in  con- 
sidering the  English  doctrine  that  written  law  may 
be  proven  by  the  parol  testimony  of  a  lawyer,  that 
court  has  this  to  say  of  it:  "In  this  country,  at  least,. 

1  Zimmerman  v.  Hesler,  32  Md.  274;  Kermott  v.  Ayer,  11  Mich.  181; 
Woodbridge  v.  Austin,  2  Tyler  (Vt.),  364;  Danforth  v.  Reynolds,  1  Vt. 
265;  Territt  v.  Woodruff,  19  Vt.  184;  McXeill  v.  Arnold,  17  Ark.  154, 
1437,  explaining  Barkman  v.  Hopkins,  11  Ark.  168;  Bowles  v.  Eddy,  3& 
Ark.  645;  Emery  v.  Berry,  8  Foster  (N.  H.),  473;  Compare!  v.  Jernegan, 
5  Blackf.  (Ind.)  375;  Line  v.  Mack,  14  Ind.  330;  Hoes  v.  Van  Alstyner 
20111.  202;  McDeed  v.  McDeed,  67111.  545;  Lee  v.  Matthews,  10  Ala. 
682;  Innerarity  v.  Mims,  1  Ala.  660;  Spaulding  v.  Vincent,  24  Vt.  501, 
505;  Gardner  v.  Lewis,  7  Gill  (Md.),  379;  Robinson  v.  Clifford,  2  Wash. 
C.  C.  2;  United  States  v.  Otega,  4  Wash.  C.  C.  533;  Ennis  v.  Smith,  14 
How.  (U.  S.)  400,  426;  Toulandonv.  Lachenmeyer,  1  Sweeny  (X.  Y.), 
45;  Isabella  v.  Pecot,  2  La.  Ann.  387;   Raynham  v.  Canton,  3  Pick 
(Mass.),  293;  Bryant  v.  Kelton,  1   Tex.  434;  Willings  v.  Consequa,  1 
Pet.   C.    C.   225;  Kenny  v.  Clarkson,  Uohnson  (N.  Y.),  385;  Lincoln, 
v.  Battelle,  6  Weud.  (X.  Y.)  475. 

2  Church  v.  Hubbart,  2  Cranch,  187. 


206  EXPERT  TESTIMONY. 

such  a  practice  would  be  very  unsafe;  and  there  are 
reasons  growing  out  of  our  peculiar  federated  sys- 
tem which  would  render  it  highly  inexpedient  to 
adopt  any  such  course  in  regard  to  the  laws  of  our 
sister  States.  Within  a  century,  most  of  them  were 
under  the  dominion  of  the  same  general  common- 
law  system,  and  their  statutes  are  to  be  interpreted 
by  similar  rules.  All  of  them  are  represented  in 
Congress,  and  the  laws  of  Congress  are  supposed  to 
be  susceptible  of  interpretation  by  any  tribunal  in 
the  land.  In  our  territorial  condition  we  were 
bound  by  laws  selected  from  all  the  old  States,  and 
our  courts  were  expected  to  pass  upon  them.  We 
have  ready  access  to  the  reported  decisions  of  courts, 
which  are  the  only  authorized  exponents  of  their 
local  statutes.  Cases  must  certainly  be  rare  in 
which  the  courts  of  one  State  cannot  comprehend 
the  statutes  of  another.  The  chief  difficulty  would 
arise  between  States  where  one  is  possessed  of  a 
common  law  and  the  other  of  a  civil-law  system. 
But  in  all  cases  it  is  safer  to  have  the  written  law  as 
a  guide,  whether  it  needs  expounding  or  not."1 

The  law  being  written,  we  have  seen  that  the  rule 
in  this  country  is  that  there  should  be  presented  to 
the  courts  a  copy  of  it,  if  it  is  possible  to  obtain  a 
copy.  But  the  question  then  arises  how  is  proof  to 
be  made  that  it  is  a  copy.  The  matter  is  quite  gen- 

'l  People  v.  Lambert,  5  Mich.  349,  362.  But  see  Barrows  v.  Downs,  9 
R.  I.  453,  where  the  court  in  the  course  of  its  opinion  says:  "There  are 
many  cases  where  the  evidence  of  a  professional  person,  or  one  skilled 
virtute  officii,  may  be  much  more  satisfactory  evidence  of  what  the  law 
is,  than  the  mere  exemplification  of  the  exact  words  of  a  foreign  statute, 
which  the  court  may  not  have  the  necessary  knowledge  to  construe. 
And  it  seems  to  us,  that  the  requiring  an  exemplified  copy  is  pressing 
the  rule  of  requiring  the  best  evidence  to  an  extent  that  would  often  de- 
feat the  ends  of  justice." 


MANNER    OF    PROOF    AS    TO    WRITTEN    LAWS.  207 

erally  regulated  by  statutory  provision.  The  Re- 
vised Statutes  of  the  United  States  provide  that 
'  'The  acts  of  the  legislature  of  any  State  or  territory, 
or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  shall  be  authenticated  by  having  the 
seals  of  such  State,  territory,  or  country  affixed 
thereto."  l 

The  States  may  admit,  as  evidence,  the  written 
law  of  sister  States,  without  the  authentication  re- 
quired by  the  Act  of  Congress  above  referred  to,  but 
the  statutes  of  one  State  thus  authenticated  must 
be  admitted  in  the  courts  of  every  other  State  of  the 
Union.2 

In  some  States  it  is  provided  that  the  statute 
books  of  another  State,  purporting  to  be  published  by 
the  authority  of  such  State,  may  be  received  in  evi- 
dence without  further  proof:3  in  others,  the  pro- 
vision is  that  statute  books  of  a  sister  State,  pur- 
porting or  proved  to  be  published  by  authority,  or 
proved  to  be  commonly  admitted  in  the  courts  of  such 
State,  may  be  received  in  evidence  :4  in  some 
others,  that  statute  books  of  other  States,  pur- 
porting to  be  published  by  authority  or  commonly 
admitted  in  the  cgurts  of  such  State,  may  be  re- 

1  U.  S.  Rev.  Stat.,  ed.  of  1878.  §  905. 

2  Taylor  v.  Bank  of  Illinois,  7  B.  Mon.  (Ky.)  576. 

3  Alabama  Code  of  1876,  §  3045;  Arkansas    Dig.    of  Statutes  (1858), 
ch.  67,  §  2;  Indiana,  Rev.  Stat.  (1881),  §  477;  Illinois,  Starr  &  Cur- 
tis's  Ann.  Stat.  (1885),  Vol.  1,  p.  1080,  §  10;  Maine,  Rev.  Stat.   (1871), 
p.  653,  §  97;  Maryland,  Rev.  Code  (1878),  p.  759,  §  46;  Rhode  Island, 
Public  Statutes  (1882),  p.  589,  §  144;  Tex.  Rev.  Stat.  (1879),  p.  329,  § 
2250. 

4  Florida.  Bush's  Dig.   (1872),  p.  547,  §  357;  Iowa,  McClain's  Ann. 
Code  (1888),  Vol.  2,  §  4969;  Kansas,  Gen.  Stat.  (1889),  Vol.  2,    §  4465; 
Massachusetts,  Gen.  Stat.  (1882),  p.  943,  §  71;  New  York,  Code  of  1871, 
j  426,  and  new  Code,  §  942;  North  Carolina,  Battle's  Revisal  (1873), p. 
233;  Ohio,    Rev.    Stat.   (1889),  p.  1323,  §  5244;  Tennessee,  2  Statutes 
(1871;,  §  3800. 


208  EXPEET    TESTIMONY. 

ceived.1  Still  another  provision  is  that  statute 
books  of  other  States,  printed  by  authority  or  proved 
to  be  commonly  admitted  in  the  courts  of  such  State, 
may  be  read  in  evidence  :2  and  in  a  few  States 
the  provision  is  that  statute  books,  printed  by  au- 
thority, may  be  received  without  further  proof.3  In 
Louisiana  the  statutory  provision  is  that  the  pub- 
lished digests  and  statutes  of  other  States  shall  be 
received  in  evidence.4  While  in  New  Jersey  the 
provision  is  so  different  from  those  in  the  statutes  of 
other  States  that  we  give  it  entire.5 

It  is  evident  that  in  those  cases  in  which  provis- 
ion is  made  for  receiving  the  statute  books  of  sister 
States,  which  are  "commonly  admitted,"  or  "proved 
to  be  commonly  admitted,''  in  the  courts  of  such 
States,  the  evidence  of  persons  practicing  in  the 

1  Delaware,    Rev.    Code    (1874),  p.  652,  §  6;  Michigan,  2    Howell's 
Ann.  St.  §  7508;  Minnesota,  Statutes  (1878),  p.  S00,§  57. 

2  Wisconsin,  Sanborn  &  Berryman's  Ann.  St.  (1889),  Vol.  2,  p.  2141,  § 
4136. 

3  Colorado,  Gen.  Laws  (1867),  p.  405,  §  1078;  Connecticut.  Gen.  Stat. 
(Rev.  of  1875),  p.  438,  §  19;  Georgia,  Code  of  1873,  p.  671,  §  3824;  Ken- 
tucky, Gen.  Stat.  (1873),  p.  413,  §  21.    And  see  1  Rev.  Stat.  of  Missouri 
(1879),  p.  379,  §  2272. 

4  Revised  Statutes  of  1870,  p.  283,  §  1440. 

5  "The  printed  statute  books  and  pamphlet  session  laws  of  any  of  the 
United  States,  printed  and  published  by  the  direction  or  authority  of 
such  State,  shall  be  received  as  evidence  of  the  public  laws  of  such 
State,  in  any  court  of  this  State;  and  the  court  may  determine  whether 
any    book    or    pamphlet,  offered  as  such,  was  so  printed  or  published, 
either  from  inspection,  or  the  knowledge  of  the  judge  or  judges,  or  from 
testimony;  and  no  error  shall  be  assigned  for  the  rejection  of  any  book 
or  pamphlet,  offered  as  such,  unless  it  be  proved  on  error  that  such  book 
or   pamphlet  is  received  as  a  statute  book  or  pamphlet  containing  the 
session  laws  of  said  State,  in  the  courts  of  such  State  whose  statute  book 
or  pamphlet  containing  the  session  laws  it  purports  to  be,    nor  shall 
any  error  assigned  for  the  admission  of  such  book  or  pamphlet  be  sus- 
tained, unless  it  be  shown  in  support  thereof  that  the  statute  offered  in 
evidence,  or  some  material  part  thereof,  was  not  in  force  in  such  State  at 
the  time  of  the  transaction  or  matter  to  which  it  was  offered  as  pertinent 
or  material."     Revision  (1709-1877),  p.  381,  §  22. 


MANNER    OF    PKOOF    AS    TO    WRITTEN    LAW.         209 

courts  of  those  States  would  be  received  to  authenti- 
cate the  law,  by  showing  that  the  book  containing  it 
is  received  in  evidence  in  the  courts  of  the  State 
whose  law  it  purports  to  be. 

It  has  been  held  in  Kentucky  that  these  statutory 
provisions  are  to  be  regarded  as  cumulative,  and 
that  they  do  not  repeal  the  common-law  mode  of 
proof.1  But  the  Supreme  Court  of  Michigan  de- 
clares that  foreign  statutes  should,  when  possible, 
be  proved,  as  provided  for  in  the  State  laws  and  the 
Acts  of  Congress,  rather  than  by  the  testimony  of  a 
lawyer  who  practiced  within  the  jurisdiction  where 
they  are  in  force."  Consequently  in  that  State  the 
written  law  cannot  be  proven  by  parol  without  some 
showing  why  secondary  evidence  is  necessary,3  and 
it  is  said  that  nothing  but  the  impossibility  of 
obtaining  a  copy — a  case,  the  court  remarks,  not  to 
be  presumed  among  civilized  nations — can  excuse 
the  non-production  of  such  a  copy.4 

In  a  case  decided  in  New  York,  the  court  re- 
fused to  receive  a  book  in  the  French  language,  pur- 
porting to  contain  the  commercial  code  of  France, 
and  which  was  produced  by  the  Chancellor  of  the 
French  Consulate  at  New  York,  who  testified  that  it 
was  an  exact  copy  of  the  laws  furnished  by  the 
French  government  to  its  consul  in  New  York.5 

In  the  absence  of  all  statutory  provision  regulat- 
ing the  mode  of  proof,  it  has  been  held  that  a  copy 
of  the  foreign  statute  should  be  produced,  which 

1  Bieseuthrall  v.  Williams,  1  Duval  (Ky.),  330.    And  see  Chamberlain 
v.  Maitland,  5  B.  Mon.   (Ky.)  44S. 

2  Kopke  v.  People,  43  Mich.  41. 

3  Kermott  v.  Ayer,  11  Mich.  181,  184. 

4  People  v.  Lambert,  5  Mich.  349,  360. 

5  Chauoiue  v.  Fowler,  3  Wend.  173. 

(14) 


210  EXPERT   TESTIMONY. 

the  witness  can  swear  was  recognized  in  the  foreign 
country  as  authoritative.1  So  in  an  early  case  in 
Pennsylvania,  the  court  received  a  printed  copy  of 
Irish  statutes  to  show  the  law  of  Ireland,  an  Irish 
barrister  having  testified  that  he  received  the  same 
from  the  King's  printer,  and  that  it  was  good  ev- 
idence in  that  country.2  And  in  England  a  book 
was  received  as  evidence  of  the  written  law  of 
France,  which  purported  to  be  printed  at  the  Royal 
Printing  Office,  and  which  the  French  Vice  Consul 
produced,  testifying  that  it  contained  the  French 
code  of  laws  upon  which  he  acted,  and  that  the  of- 
fice where  it  purported  to  be  printed  by  authority 
of  the  government  was  the  government  printing 
office.3  In  New  Jersey,  prior  to  the  adoption  by 
that  State  of  any  statutory  provision  regulating  the 
matter,  the  courts  held  that  parol  proof  by  an  at- 
torney, that  the  book  was  read  and  received  in  the 
courts  of  the  other  State  as  an  authentic  copy  of 
their  statutes,  w^s  not  sufficient,  but  that  it  should 
be  authenticated  according  to  the  Act  of  Congress, 
or  by  sworn  copies  from  the  original  statutes.4 

§  90.  Proving:  the  Written  Law,  in  the  Discretion 
of  the  Court,  by  the  Testimony  of  Experts. — The  gen- 
eral rule  of  law  in  this  country,  therefore,  is  :  That 
the  unwritten  law  of  a  foreign  State  must  be  proved 
by  the  testimony  of  experts,  that  is,  by  those  who 
are  acquainted  with  the  law,  but  that  the  written 
law  of  such  a  State  is  to  be  proven  by  a  copy  properly 


1  Spaulding  v.  Vincent,  24  Vt.  501,  505. 

1  Jones  v.  Maffett,  5  S.  &  R.  523. 

3Lacon  v.JEiggins,  3  Starkie  (X.  P.),  178.  See  also,  Middleton  v. 
Janverin.  2  Hag.  Cons.  R.  437. 

4  Van  Buskirk  v.  Mulock.  18  X.  J.  Law,  184.  overruling  Hale  v.  Ross, 
3  X.  J.  Law,  373.  See  Coudit  v.  Blackwell.  19  X.  J.  Eq.  193, 196. 


DISCRETION    OF    COURT    AS    TO    WRITTEN    LAW.     211 

authenticated.1     It  is  clear,  however,  that  such   a 
rule  as  this  may  be  varied  by  statute,  and  as  a  mat- 
ter of  fact  it  has  been  so  varied  in  some  of  the  States. 
Thus,  in   Delaware,  Massachusetts,  Minnesota   and 
Wisconsin,  the  statutes  provide  as  follows :   "The 
existence  and  the  tenor  or  effect  of  all  foreign  laws 
may  be  proved  as  facts  by  parol  evidence;  but  if  it 
shall  appear  that  the  law  in  question  is  contained 
in  a  written  statute  or  code,  the  court  may,  in  their 
discretion,  reject  any  evidence  of  such  law  that  is  not 
accompanied  by  a  copy  thereof."      The  phraseology 
of  the  Kentucky  and   Maine  statutes  differ  some- 
what  from    the  above   provision.     The   Kentucky 
statute  reads  as  follows :   ' '  The  existence  and  the 
tenor  or  effect  of  all  foreign  laws  beyond  the  limits 
of  the  United  States   may  be  proved  by  the  parol 
evidence  of  persons  learned  in  those  laws.     But  if 
it  appear  that  the  law  in  question  is  contained  in  a 
written  statute,  the  court  may  reject  such  parol  ev- 
idence, unless  it  be  accompanied  by  a  copy  of  the 
statute."      While  in  Maine  it  runs  as  follows:   "For- 
eign laws   may   be  proved  by  parol    evidence,  but 
when  such  law  appears  to  be  existing  in  a  written 
statute  or  code,  it  may  be  rejected  unless  accom- 
panied by  a  copy  thereof.     The  unwitten  law  of  any 
other  State  or  territory  of  the  United  States  may 
be  proved  by  parol 'evidence,  and  by  books  of  re- 
ports of  cases  adjudged  in  their  courts." 


1  See  the  preceding  section,  and  also  Pierce  v.  Indsetb,  106  U.  S.  546. 
551. 

2  Delaware  Rev.  Code   (1874),  p.  652,  §  8;  Massachusetts   Gen.  Stat. 
(1882),  p.  993,  §  73;  Statutes  of  Minnesota  (1878),  p.  800, §  59;  Wiscon- 
sin. Sauborn  &  Berryman's  Ann.  Stat.,  p.  2141,  §  4139. 

3  Gen.  Stat.   (1873),  p.  413,  §  18. 

4  Rev.  Stat.   (1871).  p.  653.  §  98. 


212  EXPERT    TESTIMONY. 

§  91.  Expert  Testimony  as  to  the  Construction 
and  Interpretation  of  Written  Law. — The  rule  of  law 
which  requires  the  written  law  to  be  proven  by  an 
authenticated  copy  does  not  make  incompetent  the 
testimony  of  an  expert  as  to  the  construction  and 
interpretation  placed  on  such  law  in  the  foreign 
State.  In  admitting  such  testimony  in  Alabama, 
as  to  the  law  of  Louisiana,  the  court  said:  "The 
exposition,  interpretation  and  adjudication  may 
never  have  been  evidenced  by  books  or  writings; 
but  may,  nevertheless,  have  become  well  under- 
stood, as  the  rule  of  law  deduced  by  the  court  from 
the  written  words  of  the  code  upon  a  particular  state 
of  facts.  Upon  such  a  question,  the  testimony  or 
opinions  of  competent  witnesses  instructed  in  the 
law  of  that  State  may  be  resorted  to."  In  another 
case  decided  in  Illinois,  it  is  held  that  while  the 
statute  of  a  foreign  State  cannot  be  proved  by  parol, 
yet  the  construction  given  to  such  statute  by  the 
tribunals  where  they  are  in  force,  may  be  given  in 
evidence  by  witnesses  learned  in  such  laws.2  So  in 
a  case  in  Maryland,  in  which  the  Revised  Statutes 
of  New  York  had  been  received  in  evidence,  a  law- 
yer residing  in  the  City  of  New  York  was  allowed  to 
give  testimony  as  to  the  construction  placed  on  the 
statute  in  question  in  New  York.3 

§  92.      Presumption    that    Law    is    Unwritten. — It 

has  been  held  that,  in  the  absence  of  evidence  to 
the  contrary,  it  will  be  presumed  that  the  foreign 
law  is  unwritten,  and  that  parol  testimony  of  ex- 
perts in  such  law  will  be  received  upon  this  assump- 


1  Walker  v.  Forbes,  31  Ala.  9. 

2  Hoes  v.  Van  Alstyne,  20  111.  202. 

3  Consolidated  Real  Estate,  etc.  Co.  v.  Cashow,  41  Md.  59,  79. 


PRESUMPTION    THAT   LAW    IS    UNCHANGED.         213 

tion.  "These  laws  are  generally  difficult  of  proof. 
It  would  be  a  very  expensive  matter  to  prove  them 
by  copies  authenticated.  It,  therefore,  shall  reason- 
ably fall  on  the  parties  objecting  to  the  parol  proof, 
to  show  that  the  law  was  a  written  edict  of  the 
country." 

§  93.  Presumption  that  the  Law  Remains  Un- 
changed.— When  a  witness  testifies  as  to  the  foreign 
law,  the  question  has  been  raised  whether  it  is  suffi- 
cient for  him  to  show  the  law  as  it  existed  at  a  period 
prior  to  the  time  of  which  the  trial  court  is  inquir- 
ing, or  whether  it  is  necessary  that  his  testimony 
should  be  addressed  directly  to  the  very  time  of  the 
transaction  in  question.  It  has  been  held  that, 
where  the  statute  of  a  sister  State  is  shown  to  have 
existed  at  a  time  prior  to  that  of  the  transaction  in 
question,  it  will  be  presumed,  in  absence  of  proof  to 
the  contrary,  that  it  continued  unchanged  to  the 
period  in  controversy.'2  But  in  a  case  in  New  York, 
when  a  printed  copy  of  the  French  Code  was  pre- 
sented, a  witness,  who  had  been  licensed  to  practice 
in  France  in  1837,  and  ceased  to  practice  in  1862, 
testified  that  at  the  time  he  practiced  in  France  the 
book  was  commonly  received  by  the  judicial  tribu- 
nals of  that  country  as  evidence  of  the  existing  law. 
The  period  for  the  existing  law  of  which  the  trial 
court  was  seeking  was  in  1871,  and  the  question 
was  raised  whether  the  law  having  been  shown  as  it 
existed  in  1862  could  be  presumed  to  have  continued 
the  same  until  the  year  1871.  This  was  not  deter- 

1  Dougherty  v.  Snyder,  15  S.  &  R.  (Penn.)  84, 87.    And  see  Livingston 
v.  Maryland  Ins.  Co.,  6  Cranch.  274,  2SO. 

2  Peck  v.  Hibbard,  26  Vt.69S;  Raynham  v.  Canton,  3  Pick.  (Mass.)  29. 


214  EXPERT   TESTIMONY. 

mined,  but  the  court  evidently  had  a  serious  doubt 
whether  such  presumption  could  be  entertained.1 

§  94.  Who  are  Qualified  to  Testify  as  Experts  in 
Foreign  Law. — In  order  to  prove  the  law  of  a  foreign 
country,  it  is  necessaiy  that  the  witnesses  produced 
to  testify  in  respect  to  it  should  be  more  than  ordi- 
narily capable  of  speaking  upon  the  subject. 

1.  It  is  evident  that  one  who  has  practiced  law 
within  the  State,  whose  law  is  to  be  proven,  is  com- 
petent to  testify  in  regard  to  the  same.2 

In  a  case  in  Maryland,  the  witness  stated  that  he 
resided  in  New  York  City,  and  was  by  occupation  a 
lawyer.  The  Court  of  Appeals,  in  passing  on  an 
objection  to  his  competency,  say:  "This  we  regard 
as  sufficient  to  enable  him  to  testify  as  he  has  done. 
The  objection,  that  he  is  not  shown  to  be  a  lawyer 
practicing  in  New  York,  or  informed  of  the  law  of 
that  State,  but  merely  that  he  is  a  lawyer  and  resides 
in  New  York,  and  for  aught  that  appears  may  have 
practiced  in  another  State  only,  is  too  refined  to  be 
tenable.  The  facts  that  he  resides  in  New  York, 
and  is  a  lawyer  by  profession,  authorizes,  in  the 
absence  of  opposing  proof,  the  inference  that  he 
practices  his  profession  in  the  State  or  city  of  his 
residence,  and  this  makes  him  competent  to  testify 
respecting  the  matter  about  which  he  was  exam- 
ined."3 

2.  Persons  who,  because  of  some  official  position 
holden  by  them,  are  required  to  know   the  law   of 
their  domicile  concerning  the  subject  inquired  about, 

1  Hynes  v.  McDermott,  82  X.  Y.  41. 

2  Consolidated  Real  Estate  Co.  v.  Cashow,  41  Md.  59 ;  Layton  v.  Chalou, 
4  La.  Ann.  318;  Mowry  v.  Chase,  100  Mass.  79;  Wilson  v.  Carson,  12 
Md.  54;  Tyler  v.  Trabne,  8  B.  Mon.  306;  Wilson  v.  Smith,  13  Tenn. 
399;  McNeil  v.  Arnold,  17  Ark.  154,  167;  Brewer  v.  Luth,  28  Kan.  581 

3  Consolidated  Real  Estate,  etc.  Co.  v.  Cashow,  41  Md.  59,  80. 


\VHO    ARE    QUALIFIED    TO    TESTIFY.  215 

are  competent  to  testify  as  to  what  that  law  is.  It 
has,  accordingly,  been  held  in  England,  and  the 
same  ruling  would,  no  doubt,  be  made  in  this  coun- 
try, that  a  person  in  the  diplomatic  service  of  Persia, 
and  who  is  required  to  be  thoroughly  versed  in  the 
law  of  that  country,  might  testify  as  to  the  law  of 
Persia  concerning  the  administration  of  estates.1 

3.     It  has  even  been  held  that  persons  who,  from 
their  business   relations,   have  become  acquainted 
with  the  law  of  a  foreign  State,  may  be  competent 
witnesses  for  the  purpose  of  proving  what  such  law 
is.     Thus,  a  captain  of  a  ship,  trading  with  China, 
has  been  held  competent  to  prove  that  the  manu- 
facture of  saltpetre  was  prohibited  in  China.2     And 
in  a  New  Hampshire  case,  a  witness  who  had  long 
been  extensively  engaged  in  mercantile  business  in 
Canada,  and  in  such   employment  had  become  ac- 
quainted with  the  law  in  relation  to  notarial  instru- 
ments, was  held  competent  to  testify  that  it  was  part 
of  the  sworn  duty  of  every  notary  in  that  country 
not  to  suffer  any  original  paper,  executed  before  him, 
to  be  taken  out  of  his  custody.3     So  in  another  case 
it  was  declared  that  "all  persons  who  practice  a 
business  or  profession  which  requires  them  to  possess 
a  certain  knowledge  of  the  matter  in  hand,  are  ex- 
perts so  far  as  expertness  is  required."      The  ques- 
tion which  this  case  involved,  related  to  the  Belgian 
law  on  the  subject  of  the  presentment  of  promissory 
notes,  and  the  point  raised  was  whether  a  witness 
called  as  an  expert  to  testify  as  to  such  law,  must  be 
a  professional  man;  one  who,  by  virtue  of  his  office, 

1  De  Dost  Aly  Khan,  6  Prob.  Div.  6. 

2  Wilcocks  v.  Phillips,  1  Wall.  Jr.  49. 
8  PickarJ  v.  Bailey.  26  N".  H.  152,  171. 

4  Vauder  Donckt  v.  Thellusson,  S  MUD.  G.  &  S.  (65  E.  C.  L.)  812. 


216  EXPERT    TESTIMONY. 

might  be  said  to  be  peritus.  It  was  held  not,  and 
one  who  had  been  a  merchant  and  stock-broker  at 
Brussels,  was  permitted  to  testify  as  an  expert.  "I 
think,"  said  Mr.  Justice  MATTLE,  "that  inasmuch  as 
he  had  been  carrying  on  a  business  which  made  it 
his  interest  to  take  cognizance  of  the  foreign  law,  he 
does  fall  within  the  description  of  an  expert."  And 
in  a  case  in  the  Supreme  Court  of  Pennsylvania,  it 
was  held  that  the  law  of  a  foreign  country  on  a  given 
subject  might  be  proven  by  any  person,  who,  though 
not  a  lawyer,  or  not  having  filled  any  public  office, 
was  or  had  been  in  a  position  to  render  it  probable 
that  he  would  make  himself  acquainted  with  it.  The 
court,  therefore,  held  that  a  pastor  of  a  church  in  a 
foreign  country  could  be  permitted  to  testify  that 
the  church  records  had  been  kept  according  to  the 
laws  of  that  country.1  In  the  same  way  a  Roman 
Catholic  bishop,  who  had  resided  in  Rome  and 
studied  church  law  and  Roman  law,  has  been  allowed 
to  testify  concerning  the  matrimonial  law  of  Rome.2 
And  in  accordance  with  this  principle  our  courts 
have  allowed  a  priest  or  minister  from  another  State 
to  testify  as  to  the  matrimonial  law  of  such  State.3 
4.  In  some  cases  the  doctrine  is  even  more  broadly 
stated,  and  it  is  said  that  the  testimony  of  any  person 
who  appears  to  be  well  informed  on  the  point  is  ad- 
missible. Thus  the  New  Hampshire  court  says:  '  'In 
proof  of  the  laws  of  a  foreign  country,  the  testimony 
of  any  person,  whether  a  professed  lawyer  or  not, 
who  appears  to  the  court  to  be  well  informed  on  the 


1  American  Life  Ins.  Co.  v.  Kosenagle,  77  Pa.  St.  507. 

2  Sussex  Peerage  Case,  11  Cl.  &  F.  134. 

3  Bird  v.  Commonwealth,  21  Gratt.  (Va.)  800,  SOS.     And  see  Phillips 
v.  Gregg,  10  Watts  (Penn.),  158,  169. 


WHO    ARE    QUALIFIED    TO    TESTIFY.  217 

point,  is  competent."  This  statement  is  a  mere 
dictum  not  required  by  any  question  before  the 
court,  as  the  witnesses  whose  testimony  was  the 
matter  in  dispute  "were  lawyers. 

In  a  Pennsylvania  case,  it  is  said  that  the  foreign 
law  "may  be  proved  by  professional  men,  or  others 
conversant  Avith,  and  having  the  means  of  knowl- 
edge." In  Texas,  the  practice  has  long  prevailed 
of  receiving  the  evidence  of  intelligent  Mexicans, 
not  lawyers,  as  to  the  laws  of  Spain  and  Mexico  in 
litigation  pertaining  to  lands,  and  such  evidence  is 
pronounced  by  the  courts  of  that  State  to  have  been 
" valuable  in  giving  information  as  to  the  construc- 
tion given  to  the  laws  of  Spain  and  Mexico  by  the 
officers  who  executed  them."  In  an  early  case  in 
New  York,  Mr.  Justice  SPENCER  declares  that  "courts 
of  law  will  receive  evidence  of  the  common  law  from 
intelligent  persons  of  the  country  whose  laws  are  to 
be  proved."*  The  language  of  the  New  York  case 
is  a  mere  dictum,  as  all  that  was  decided  was  that  a 
foreign  statute  could  not  be  proven  by  parol. 
Neither  does  it  appear  who  would  be  regarded  as  an 
"intelligent"  person  within  the  meaning  of  the  ex- 
pression used.  And  in  Illinois  it  is  said  that  it  may 
be  proven  by  the  testimony  of  competent  witnesses 
instructed  in  its  laws.5  But  in  this  Illinois  case  the 
testimony  was  given  by  practitioners  of  the  law  of 
more  than  twenty  years'  standing,  and  the  words 
used  do  not  necessarily  imply  that  persons  who  were 
not  lawvers  would  be  allowed  to  testifv. 


1  Hall  v.  Costello,  48  N.  H.  176,  179. 

2  Joues  v.  Maffett,  5  Serg.  &  R.  (Penn.;  523,  532. 

3  State  v.  Cuellar,  47  Tex.  304. 

4  Kenney  v.  Van  Home,  1  Johns.  (X.  Y.)  394. 

5  Milwaukee  &  St.  Paul  R.  R.  Co.  v.  Smith,  74  111.  197. 


218  EXPERT   TESTIMONY. 

The  principle  which  Would  allow  any  person,  who 
claims  to  know  the  foreign  law,  to  give  testimony 
concerning  it  in  a  court  of  justice  seems  unjustifiably 
lax.  There  can  be  no  necessity  for  receiving  such 
testimony,  and  it  ought  not  to  be  admitted.  A  wit- 
ness, to  be  competent  to  testify  on  a  question  of 
foreign  law,  should  be  an  expert,  and  it  is  as  neces- 
sary that  he  should  be  such  as  it  is  that  a  witness 
should  be  an  expert  in  order  to  give  testimony  on  a 
question  of  medical  science.  We  have  seen  in 
another  part  of  this  work1  that  a  witness  cannot  tes- 
tify as  an  expert  on  a  particular  matter  when  that- 
particular  matter  does  not  pertain  to  his  special  call- 
ing or  profession,  and  his  knowledge  of  the  subject 
of  inquiry  has  been  derived  from  study  alone.  And 
so  a  witness  who  is  not  a  member  of  the  legal  pro- 
fession, or  a  public  officer  who  is  required  to  know 
the  law,  or  some  person  like  an  ecclesiastic  who 
knows  the  law  pertaining  to  his  department,  or  a 
person  engaged  in  a  certain  business  which  requires 
him  to  possess  a  certain  knowledge  of  the  matter  in 
hand,  should  not  be  allowred  to  give  testimony  on  a 
question  of  foreign  law. 

The  dictum  of  the  New  Hampshire  court,  if  fol- 
lowed, would  often  lead  to  disastrous  results  that 
would  subject  the  administration  of  the  law  to  de- 
served reproach.  The  English  rule,  as  will  be  seen 
in  the  section  which  follows,  is  opposed  to  any  such 
loose  doctrine.  In  a  case  in  Michigan,  which  in- 
volved the  marriage  laws  of  New  Jersey,  a  person 
who  had  been  a  policeman  and  constable  in  the  lat- 
ter State,  and  who  did  not  swear  to  any  general 
knowledge  of  the  laws  of  that  State,  but  said  he  had, 

1  Section  I'.i. 


WHO    ARE    QUALIFIED    TO    TESTIFY. 

on  account  of  a  difficulty  with  his  own  wife,  looked 
into  those  laws,  was  allowed,  in  the  court  below,  to 
testify  what  the  written  laws  of  New  Jersey  were  in 
regard  to  marriage.  The  Supreme  Court  held  the 
witness  to  be  incompetent,  saying:  "In  regard  to 
the  law  of  marriage,  his  means  of  knowing  the  law 
were  those  of  any  other  citizen,  and  no  more."  The 
court  calls  attention  to  the  English  rule  requiring 
the  witness  to  be  an  expert,  and  thinks  it  would  be 
a  reproach  to  the  law  to  regard  persons  with  slight 
qualifications  as  experts  to  give  testimony  on  such 
matters.1 

§  95.      Who   are   Qualified   to  Testify  as  Experts  in 
Foreign   Law  — The    Rule  in  England. — In  England, 

a  more  rigid  rule  has,  in  some  cases,  been  applied 
in  determining  the  qualifications  of  persons  to  give 
expert  testimony  on  the  science  of  law.  In  one  case 
the  Master  of  the  Rolls  refused  to  act  on  the  affidavit 
of  one  describing  himself  as  a  "Solicitor  practicing 
in  the  Supreme  Courts  of  Scotland,  Edinburgh," 
and  required  the  opinion  of  an  advocate  as  to  the 
Scotch  law."  There  is  an  English  case  in  which  it 
was  held  that  one  who  was  not  a  lawyer,  and  who 
had  no  special  qualifications,  but  who  had  resided 
in  Scotland  for  twenty  years,  and  who  swore  that  he 
was  acquainted  with  the  law  of  marriage,  was  com- 
petent to  state  what  the  Scotch  law  of  marriage  was.* 
It  did  not  appear  that  the  witness  had  any  peculiar 
means  of  information  as  to  the  law.  But  this  case 
has  been  disapproved,  and  does  not  seem  to  be  re- 

1  People  v.  Lambert,  5  Mich.  349. 

2  In  re  Todd,  19  Beav.  582.     The  opinions  of  Scotch  advocates  were 
also  received  in  Williams  v.  Williams,  3  Beav.  547,  and  in  Hitchcock 
v.  Clendinen,  12  Beav.  534. 

3  Regina  v.  Dent,  1  C.  &  K.  (47  E.  C.  L.)  96. 


220  EXPERT    TESTIMONY. 

garded  as  the  law.  In  the  Sussex  Peerage  Case,  in 
the  House  of  Lords,  the  Lord  Chancellor,  in  speak- 
ing of  the  case,  said:  "I  ought  to  say  at  once  that 
it  is  the  universal  opinion  both  of  the  Judges  and 
the  Lords  that  the  case  is  not  law. 'n  But  while  that 
case  was  thus  emphatically  repudiated,  it  Avas  at  the 
same  time  held,  as  stated  in  the  preceding  section, 
that  a  Roman  Catholic  bishop,  holding  the  office  of 
coadjutor  to  a  vicar-apostolic  in  England,  was  to 
be  considered,  by  virtue  of  his  office,  as  a  person 
skilled  in  the  matrimonial  law  of  Rome,  and,  there- 
fore, competent  as  a  witness  to  prove  that  law.  The 
Lord  Chancellor  declared  that  the  witness  came 
within  the  description  of  a  person  peritus  virtute  officii. 
The  English  courts,  too,  have  held,  as  we  have  seen, 
that  the  Persian  ambassador  at  Vienna  might  testify 
as  an  expert  in  the  law  of  Persia;  but  this  was  after 
he  had  testified  that  in  Persia  there  were  no  profes- 
sional lawyers;  that  the  administration  of  the  law 
was  left  entirely  to  ecclesiastics,  and  that  all  persons 
in  the  diplomatic  service  of  that  country  were  re- 
quired to  be  thoroughly  versed  in  the  law;  and  that 
he  had,  therefore,  studied  and  become  acquainted 
with  it.2 

In  1861,  the  British  Parliament  passed  a  very  wise 
and  useful  act,  by  which  it  was  intended  that  all 
questions  of  foreign  law  should  be  referred  to  the 
courts  of  the  foreign  country  to  be  there  decided  and 
certified  back.3 

1  Sussex  Peerage  Case,  11  Cl.  &  F.  85. 

2  The  Goods  of  Dost  Aly  Khan,  6  Prob.  Div.  (L.  R.)  6. 

3  "If,  in  any  action  depending  in  any  court  of  a  foreign  country  or 
State,  with  whose  government  Her  Majesty  shall  have  entered  into  a 
convention  as  above  set  forth  (i.  e.,  for  the  purpose  of  mutually  ascer- 
taining the  law),  such  court  shall  deem  it  expedient  to  ascertain  the  law 
applicable  to  the  facts  of  the  case  as  administered  in  any  part  of  Her 


ACQUIRING    KNOWLEDGE    OF    FOREIGN    LAW.        221 

'  §  96.  Where  Knowledge  of  the  Foreign  Law  Must 
Have  Been  Acquired. — It  has  been  held  in  several 
cases,  that  where  the  knowledge  of  a  witness  pro- 
duced as  an  expert  in  foreign  law  has  not  been  ac- 
quired in  the  foreign  country,  such  person  is  not  to 
be  regarded  as  competent,  and  his  testimony  cannot 
be  received.  Thus,  it  has  been  held  in  England, 
that  a  witness  was  incompetent  to  testify,  who  stated 
that  he  was  a  jurisconsult,  and  adviser  to  the  Prus- 
sian Consul  in  England,  and  had  studied  law  in  the 
University  of  Leipsic,  and  that  from  his  studies  there 
he  was  able  to  say  that  the  Code  Napoleon  was  the 
law  of  Cologne.  The  court  declared  that  one  wTho 
never  had  been  in  the  foreign  State,  and  whose 
knowledge  of  the  law  was  not  derived  there,  was  in- 
competent to  testify  as  an  expert  in  the  foreign  law.1 
And  where  one  described  himself  as  "a  certified 
special  pleader,  and  as  familiar  with  Italian  law,'' 
he  was  not  allowed  to  testify  that  the  office  of  curator 

Majesty's  dominions,  and  if  the  foreign  court  in  which  such  action  may 
depend,  shall  remit  to  the  court  in  Her  Majesty's  dominions  whose  opin- 
ion is  desired,  a  case  setting  forth  the  facts  and  questions  of  law  arising 
out  of  the  same,  on  which  they  desire  to  have  the  opinion  of  a  court 
within  Her  Majesty's  dominions,  it  shall  be  competent  to  any  of  the 
parties  to  the  action  to  present  a  petition  to  such  last  mentioned  court, 
whose  opinion  is  to  be  obtained,  praying  such  court  to  hear  parties  or 
their  counsel,  and  to  pronounce  their  opinion  thereon  in  terms  of  this 
act,  or  to  pronounce  their  opinion  without  hearing  parties  or  counsel; 
and  the  court  to  which  such  petition  shall  be  presented  shall  consider 
the  same,  and  if  they  think  lit,  shall  appoint  an  early  day  for  hearing 
parties  or  their  counsel  on  such  case,  and  shall  pronounce  their  opinion 
upon  the  questions  of  law,  as  administered  by  them,  which  are  submitted 
to  them  by  the  foreign  court;  and  in  order  to  their  pronouncing  such 
opinion,  they  shall  be  entitled  to  take  such  further  procedure  thereupon 
as  to  them  shall  seem  proper,  and  upon  such  opinion  being  pronounced, 
a  copy  thereof,  certified  by  an  officer  of  such  court,  shall  be  given  to  each 
of  the  parties  to  the  action  by  whom  the  same  shall  be  required."  24  & 
25  Viet.,  ch.  11.  See  Law  Magazine  and  Review,  London,  May,  1882, 
and  8  Southern  Law  Review,  153. 
1  Bristow  v.  Sequeville,  5  Excheq.  272. 


222  EXPERT    TESTIMONY. 

in  Italy  was  as  nearly  as  possible  identical  with  that 
of  an  administrator  in  England,  the  ground  for  his 
exclusion  being  that  there  was  nothing  "to  show 
that  he  had  any  knowledge  of  Italian  law,  but  from 
the  study  of  it  in  this  country"  (England).1  So  an 
English  barrister  practicing  in  Canadian  Appeals 
before  the  Privy  Council,  has  been  held  incompetent 
in  England  to  give  evidence  as  an  expert  as  to  the 
validity,  according  to  the  law  of  Canada,  of  a  mar- 
riage solemnized  in  that  country.2  In  this  coun- 
try, a  witness  who  showed  himself  to  be  instructed 
in  the  laws,  customs  and  usages  of  Spain,  and  who 
was  a  legal  practitioner  in  the  Island  of  Cuba,  which 
is  governed  by  Spanish  law,  was*  held  competent  to 
prove  the  law  of  Spain,  although  he  never  resided 
or  practiced  in  the  latter  country.3  And  in  another 
case  a  witness  who  had  never  been  admitted  to  the 
French  bar  was  held  competent  to  testify  as  to  the 
law  of  France,  but  he  had  studied  the  law  as  a  pro- 
fession and  been  graduated  from  the  University  of 
Paris,  and  was  at  the  time  of  giving  his  testimony 
employed  by  the  French  government  as  legal  adviser 
of  the  legation  at  Washington.4 

§  97.  Right  of  Expert  to  Cite  Text  Books,  Decis- 
ions, Codes,  etc. — When  a  lawyer  or  expert  in  foreign 
law  is  allowed  to  testify  as  to  the  law.  assuming  it  to 
be  a  resultant  of  the  lex  scripta  and  the  lex  non-scripta, 
he  may  confirm  his  recollection  of  the  law,  or  assist 
his  own  knowledge  by  reference  to  text  books,  de- 
cisions, statutes,  codes,  or  other  legal  documents.5 

1  The  Goods  of  Bonnelli,  1  Prob.  Div.  (L.  R.)  69. 

2  Cartwright  v.  Cartwright,  26  W.  R.  684. 

3  Molina  v.  United  States,  6  Ct.  of  Cl.  269. 
«  Dauphin  v.  U.  S.,  6  Ct.  of  Cl.  221. 

5  See  Barrows  v.  Downs,  9  R.  I.  446. 


HOW    CITATIONS    ARE    TO    BE    REGARDED.  223 

And  if  he  describes  them  as  truly  stating  the  law, 
they  may  be  read,  not  as  evidence  per  se,  but  as 
part  and  parcel  of  his  testimony.1 

§  98.  How  these  Citations  are  to  be  Regarded. — 
It  has  been  said  in  En  gland -that  in  the  first  instance, 
at  least,  the  judge  can  only  regard  the  citation  of 
the  laws  and  authorities  contained  in  the  opinions 
of  the  experts,  as  connected  with  the  testimony,  and 
that  he  cannot  consider  them  as  at  all  important, 
except  with  regard  to  the  degree  of  weight  given  by 
the  testimony.  That  if  he  reads  them  they  may 
appear  to  him  to  accord  with  the  testimony,  or  to 
differ  from  it.  "If,  in  his  view,  they  accord  with  it, 
nothing  is  gained.  If,  in  his  view,  they  differ  from 
it,  he,  being  ignorant  of  the  foreign  law,  cannot 
weigh  his  opinion  against  the  clear  and  uncontra- 
dicted  opinion  of  the  witness  whose  opinion  ought 
to  be  derived,  not  only  from  the  citation  in  question, 
but  from  all  the  sources  of  his  knowledge  of  the  law 
of  which  he  is  speaking."2  And  in  the  Duchess  Di 
Siora's  Case  in  the  House  of  Lords,  Lord  Chelmsford 
declares  that  it  seems  contrary  to  the  nature  of  the 
proot  required,  that  the  judge  should  be  at  liberty 
t<»  search  for  himself  into  the  sources  of  knowledge 
from  which  the  witnesses  have  drawn,  and  produce 
for  himself  the  fact  which  is  required  to  be  proved 
as  a  part  of  the  case.3  But  where  the  opin- 
ions of  the  experts  are  unsatisfactory  and  contra- 
dictory, the  court  is  at  liberty  to  examine  for  itself 
the  laws  and  authorities  cited  by  the  witnesses  as 
the  basis  or  foundation  for  their  opinions.  Thus,  in 

1  See  Taylor  on  Ev.    §    1423:  Xelson  v.  Bridport,  8  Beav.  :>27.  538; 
Sussex  Peerage  Case,  11  Cl.  &  Fin.  114. 117. 

2  Nelson  v.  Bridport.  8  Beav.  527,  541. 
3 10  House  of  Lords'  Cases,  640. 


224  EXPERT    TESTIMONY. 

a  case  before  the  Privy  Council  when  the  judges  said 
the  evidence  of  the  experts  was  not  satisfactory,  they 
laid  down  a  rule  correctly  stated  by  the  reporter  in 
a  marginal  note  as  follows:  "Foreign  law  is  a  mat- 
ter of  fact  to  be  ascertained  by  the  evidence  of  ex- 
perts skilled  in  such  law;  but  where  the  evidence  of 
the  experts  is  unsatisfactory  and  conflicting,  the  ap- 
pellate court,  not  having  an  opportunity  of  person- 
ally examining  the  witnesses  to  ascertain  the  weight 
due  to  each  of  their  opinions,  will  examine  for  itself 
the  decisions  of  the  foreign  courts  and  the  text  writ- 
ers, in  order  to  arrive  at  a  satisfactory  conclusion 
upon  the  question  of  foreign  law."  In  a  case 
in  1889,  b'efore  the  Chancery  Division  of  the 
English  court  the  question  was  again  raised,  and 
COLTON,  L.  J.,  disposed  of  it  as  follows:  "In  our 
courts,  foreign  law  is  a  matter  of  fact  to  be  decided 
on  evidence,  and  the  proper  evidence  is  that  of  ex- 
perts, that  is  to  say,  of  advocates  practicing  in  the 
courts  of  the  country  whose  law  our  courts  want  to 
ascertain.  It  was  urged  on  behalf  of  the  respond- 
ent that  all  we  can  do  is  to  look  at  the  affidavits  of 
the  experts,  and  that  if  the  law  on  any  particular 
point  is  not  laid  down  in  them,  then  we  have  no 
evidence  what  the  foreign  law  on  that  point  is,  and 
that  then,  if  the  appellant's  case  depends  on  the 
law  on  that  particular  point,  she  has  not  established 
it,  and  her  appeal  must  fail.  Now,  as  I  have  said, 
the  proper  evidence  of  the  law  of  any  foreign  country 
is  evidence  by  law}7'ers  of  that  country,  but  if  in 
their  evidence  they  refer  to  passages  in  the  code  of  the 
country  whose  law  we  are  endeavoring  to  ascertain, 
it  would,  as  it  appears  to  me,  be  most  unreasonable 

1  Brewer  v.  Freeman,  10  Moore.  P.  C.  306. 


WHETHER    QUESTION    FOR    COURT    OR   JURY.         225 

to  hold  that  we  are  not  at  liberty  to  look  at  those 
passages  and  consider  what  is  their  proper  mean- 
ing.' '  And  while  all  the  'judges  concurred  entirely 
in  the  above  statement,  LOPES,  L.  J.,  took  occasion 
to  add  the  following:  "It  was  said  that  the 
court  could  not  look  at  the  provisions  of  the 
civil  code  of  Peru  and  form  any  opinion  as 
to  the  meaning  of  any  of  its  provisions.  I  be- 
lieve the  rule  in  such  a  case  to  be  that  if  an 
expert  witness  called  to  prove  foreign  law  states  that 
any  text  book,  decision,  code,  or  other  legal  docu- 
ment truly  represents  that  law,  then  the  court  is  at 
liberty  to  regard  the  legal  document  to  which  he  re- 
fers, not  as  evidence  per  se,  but  as  part  of  the  testi- 
mony of  the  witness,  and  to  deal  with  it,  and  give 
the  same  effect  to  it,  as  to  any  other  portion  of  the 
evidence  of  the  expert  witness." 

§  99.  Whether  the  Question  of  Foreign  Law  is 
for  the  Court  or  Jury. — As  courts  do  not  take  judi- 
cial notice  of  foreign  laws,  unless  expressly  author- 
ized by  statute  to  do  so,  the  foreign  law  must  be 
proved  as  a  fact,  and  the  question  arises,  when  one 
learned  in  the  foreign  law  testifies  in  regard  to  the 
same,  whether  the  testimony  thus  given  is  addressed 
to  the  court  for  its  information  as  law,  or  to  the  jury 
to  be  passed  on  by  them  as  a  question  of  fact.  The 
authorities  are  not  in  harmony  as  to  the  true  rule  to 
be  observed  in  such  cases.  Some  of  the  authorities 
announce  that  the  evidence  of  the  existence  of  a 
foreign  law  is  to  be  addressed  to  the  court,1  and 


1  Concha  v.  Murrieta,  L.  R.  40  Ch.  Div.  543,  550. 

2  Ferguson  v.  Clifford,  37  N.  H.  86;  Wilson  v.  Carson,  12  Md.  54,  75; 
Bank  v.  Barry,  20  Md.  287,  295. 

(15) 


226  EXPERT   TESTIMONY. 

such  is  the  opinion  of  Greenleaf  and  Story.1  But 
other  authorities  hold  that  the  evidence  is  for  the 
jury.8  There  is  authority  for  saying,  that  when  the 
foreign  law  is  written  and  is  authenticated  in  the 
manner  provided  for  by  the  Act  of  Congress  or  the 
statutes  of  the  State,  the  testimony  is  addressed  to 
the  court,  and  the  jury  are  not  concerned  with  it. 
But  if  the  law  is  unwritten,  its  existence  being  proved 
by  the  parol  testimony  of  witnesses,  the  jury  must 
then  pass  on  the  credibility  of  the  witnesses  and  find 
whether  its  existence  be  proven.3 

It  has  sometimes  been  supposed  that  the  interpre- 
tation or  construction  of  foreign  law  is  also  a  matter 
of  fact  for  the  jury.*  But  we  think  that  the  great 
weight  of  authority  is  the  other  way,  and  that  the 
meaning  of  the  law  is  for  the  court.5  ''What  is  the 
law  of  another  State,  or  of  a  foreign  country,"  says 
the  Supreme  Court  of  North  Carolina,  "is  as  much 
a  'question  of  law,'  as  what  is  the  law  of  our  own 
State."6 

In  Massachusetts  the  rule  is  that  when  the  ev- 
idence consists  of  the  testimony  of  experts  as  to  the 
existence  or  prevailing  construction  of  a  statute,  the 
jury  must  determine  what  the  law  is,7  but  if  it  con- 

1  Greenl.  on  Ev.  §  486;  Story  on  Conflict  of  Laws,  §  638. 

2  Charlotte  v.  Chouteau,  33  Mo.  194;  Cobb  v.  Griffith,  87  Mo.  90,  94; 
Holman  v.  King,  7  Met.  (Mass.)  384;  Hale  v.  New  Jersey  Steam  Naviga- 
tion Co.,  15  Conn.  549;  Dyer  v.  Smith,  12  Conn.  385;  State  v.  Jackson, 
2  Dev.  (N.  C.)  563;  Ingraham  v.  Harr,  11  Ohio,  255. 

8  See  Kline  v.  Baker,  99  Mass.  253,  254;  Hooper  v.  Moore,  5  Jones  N. 
C.  Law,  130,  134;  Bock  v.  Lauman,  24  Pa.  St.  435,  445. 

4  Moore  v.  Gwyn,  5  Ired.  (X.  C.)  187. 

5  Cobb  v.  The  Griffiith,  etc.  Co.,  87  Mo.  94;  Bock  v.  Lauman,  24  Pa. 
St.  435,446;  Consequa  v.  Willings,  1  Pet.  C.  C.  225;  Sidwell  v.  Robert, 
1   Pa.  283;    Lockwood    v.  Crawford,  18  Conn.  361;    State  v.  Jackson,  2 
Dev.  (N.  C.)  563;  Inge  v.  Murphy,  10  Ala.  (N.  S.)  885. 

6  Hooper  v.  Moore,  5  Jones  N.  C.  Law,  130, 132. 

7  Kline  v.  Baker,  99  Mass.  253,  254. 


POWERS    AND    OBLIGATIONS    OF    ATTORNEY.         227 

sists  of  a  single  statute  or  judicial  opinion,  the 
question  of  its  construction  is  for  the  court.1 

§  100.  Testimony  as  to  Usage  and  Practice  of 
Courts  of  Another  state. — Lawyers  are  permitted  to 
testify  in  the  courts  of  another  State,  as  to  the  usage 
and  practice  of  the  courts  in  the  State  in  which  they 
practice.2  In  the  case  cited,  the  depositions  of  law- 
yers and  judges  of  Rhode  Island  were  received  in 
the  courts  of  Massachusetts,  to  show  that  the  service 
of  a  writ  of  arrest  in  the  manner  set  forth  in  the 
officer's  return  was  a  good  and  valid  service  under 
the  practice  and  usage  of  the  courts  of  Rhode  Island, 
giving  the  courts  of  that  State  jurisdiction,  and  that 
a  judgment  concluded  on  such  service  would  be 
valid  there.  It  amounted  to  proof  of  the  unwitten 
law.  But  the  rule  allowing  experts  to  testify  does 
not  enable  a  party  to  call  lawyers  to  testify  what  is 
the  practice  of  the  profession,  under  a  certain  stat- 
ute of  the  State,  for  the  purpose  of  guiding  the  judge 
in  the  construction  to  be  given  to  it,  in  cases  where 
the  question  arises  in  the  courts  of  the  State  which 
enacted  the  statute.3 

§  101.  Testimony  as  to  Powers  and  Obligations 
of  an  Attorney  in  his  Relations  to  his  Clients. — It  is 

error  to  receive  the  opinions  of  lawyers  as  to  the 
rights  and  duties  of  an  attorney  as  between  himself 
and  his  client.*  In  the  particular  case,  it  was  held 
error  to  receive  the  opinions  of  such  witnesses  as  to 
whether,  in  a  certain  state  of  facts,  an  attorney 
should,  as  a  matter  of  course  and  of  duty,  have 


1  Ely  v.  James,  123  Mass.  36,  44. 
3  Mo  wry  v.  Chase,  100  Mass.  79. 

3  Gaylor's  Appeal,  43  Conn.  82. 

4  Classman  v.  Merkel,  3  Bosw.  402,  409. 


228  EXPERT   TESTIMONY. 

moved  for  a  reference,  and  whether  he  had  or  had 
not  a  right,  in  the  discharge  of  his  legal  and  proper 
duty,  to  open  a  default.1 

§  102.  The  Value  of  Legal  Services. — The  sub- 
ject of  the  testimony  of  experts  as  to  the  value  of 
legal  services  performed  is  considered  in  another 
connection  and  need  not  be  referred  to  here.2 

1  See  section  11. 

2  See  Chapter  VIII. 


TESTIMONY    OF    NAUTICAL    MEN.  229 


CE AFTER  VI. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS. 
SECTION. 

103.  Testimony  of  Nautical  Men. 

104.  Testimony  of  Railroad  Men. 

105.  Testimony  of  Insurance  Men. 

106.  Testimony  of  Civil  Engineers. 

107.  Testimony  of  Surveyors. 

108.  Testimony  of  Millers  and  Mill-wrights. 

109.  Testimony  of  Machinists. 

110.  Testimony  of  Mechanics. 

111.  Testimony  of  Masons. 

112.  Testimony  of  Farmers  and  Gardeners. 

113.  Testimony  of  Cattlemen. 

114.  Testimony  of  Painters  and  Photographers. 

115.  Testimony  of  Lumbermen. 

116.  Testimony  of  Experts  in  Patent,   Trade-mark  and   Copyright 

Cases. 

117.  Testimony  of  Business  Men  as  to  Usage. 

118    Testimony  as  to  Technical  Terms  and  Unusual  Words. 

119.  Translation  by  Experts  of  Writings  from  a  Foreign  Language. 

120.  Opinions  of  Experts  in  Miscellaneous  Cases. 

§  103.  Testimony  of  Nautical  Men. — The  opin- 
ions of  persons  engaged  in  the  navigation  of  vessels 
and  boats  are  received  on  questions  pertaining  to 
nautical  science.  "Such  men  form  their  opinions 
from  facts  within  their  own  experience,  and  not  from 
theory  or  abstract  reasoning.  They  come,  therefore, 
even  more  properly  within  the  definition  of  experts 


230 


EXPERT    TESTIMONY. 


than  men  of  mere  science."1  Their  opinions  have 
been  received  as  to  the  sea-worthiness  of  vessels;2  as 
to  what  caused  a  vessel  to  leak;3  as  to  the  soundness 
of  a  chain  cable;4  as  to  the  possibility  of  avoiding  a 
collision  by  the  use  of  proper  care  on  the  part  of  the 
officers  and  crew  of  one  of  the  vessels;5  as  to  whether 
a  port  could  have  been  made  by  skillful  manage- 
ment;' as  to  whether  a  vessel  was  stranded  through 
unskillful  and  careless  management,  or  inevitable 
accident;7  as  to  the  proper  mode  and  time  of  chang- 
ing the  fastening  of  boats  in  a  tow;8  as  to  whether 
it  would  be  safe  or  prudent  for  a  tugboat,  on  any  wide 
water,  to  tug  three  boats  abreast,  with  a  high  wind;* 
and  also  as  to  the  practical  effect  produced  on  a  ship 
by  cross  seas  and  heavy  swells,  shifting  winds  and 
sudden  squalls.10  Experienced  river  navigators,  who 
knew  both  boats,  have  been  allowed  to  testify  as  to 
what  would  be  the  probable  effect  on  one  boat  of  the 


1  Delaware,  etc.  Steam  Towboat  Co.  v.  Starrs,  69  Pa.  St.  36,  41.     And 
see  Clark  v.  Detroit  Locomotive  Works,  32  Mich.  350. 

2  Beckwith  v.  Sydebotham,  1  Camp.  117;  Baird  v.  Daly,  68  N.  Y.  548; 
Patchin  v.  Astor  Mutual  Ins.   Co.,  13  N.  Y.  268;  Western  Ins.  Co.  v. 
Tobin,  32  Ohio  St.  77,  94.    The  certificate  of  a  marine  surveyor  and  in- 
spector, made  in  the  course   of  his  business,  is  competent  evidence  of 
sea- worthiness  at  that  time,  if  supported  by  his  oath  that  he  examined 
the  vessel,  and  has  no  doubt  that  the  facts  stated  in  it  are  true,  although 
he   has  no  independent  recollection  of  the  facts.    Perkins  v.  Augusta 
Ins.  Co.,  10  Gray,  312. 

3  Parsons  v.  Manuf .,  etc.  Ins.  Co.,  16  Gray,  463.    See,  too,  Zugasti  Y. 
Lamer,  12  Moore  P.  C.  331,  336. 

4  Reed  v.  Dick,  8  Watts  (Penn.),  479. 

6  Jamesori  v.  Drinkald,  12  Moore,  148;  Fenwick  v.  Bell,  1  Car.  &  Kir. 
(47  Eng.  C.  L.  311)  312;  Carpenter  v.  Eastern  Tranportation  Co.,  71 
N.  Y.  574;  Spickerman  v.  Clark,  9  Hun,  133. 

6  Dolz  v.  Morris,  17  N.  Y.  Sup.  Ct.  202,  203. 

7  New  England  Glass  Co.  v.  Lovell,  7  Gush.  (Mass.)  319,  322. 

8  Delaware,  etc.  Steam  Towboat  Co.  v.  Starrs,  69  Pa.  St.  36,  41. 

9  Transportation  Line  v.  Hope,  95  U.  S.  297. 

10  Walsh  v.  Washington  Marine  Ins.  Co.,  32  N.  Y.  427. 


TESTIMONY    OF    NAUTICAL    MEN.  231 

waves  or  swells  of  another  and  very  large  boat — 
that  it  would  have  a  tendency  to  open  the  seams  of 
the  outriggers,  and  cause  the  caulking  to  fall  out, 
which  would  have  a  tendency  to  let  water  in.1  The 
opinions  of  nautical  experts  have  also  been  received 
as  to  the  proper  management  of  a  ship.2  And  ex- 
perienced navigators  who  were  acquainted  with  the 
nature  and  extent  of  obstructions  in  the  waters  nav- 
igated, and  the  dangerous  character  of  their  naviga- 
tion, have  been  held  competent  to  express  an  opinion 
as  to  the  probable  cause  of  the  loss  of  a  vessel.3  In  cases 
of  collision,  where  the  question  is  as  to  the  direction 
from  which  the  blow  appeared  to  have  come,  the 
opinions  of  nautical  experts  have  also  been  received.4 
In  the  case  cited,  the  court  say:  "It  may  easily  be 
perceived  how  an  experienced  boatman  could  judge 
of  the  direction  of  the  body  in  motion,  that  dis- 
placed a  portion  of  the  plank  and  timbers  of  the  in- 
jured vessel,  as  a  surgeon  can  tell  from  what  quarter 
a  blow  has  been  aimed  that  inflicts  a  wound  upon 
the  person;  but  a  mere  description  of  the  broken 
fragments,  in  the  one  case,  or  the  lacerated  integu- 
ments in  the  other,  will  seldom,  if  ever,  enable  a 
jury  to  say  how  the  disturbing  cause  made  its  ap- 
proach." Nautical  experts  may  be  permitted  to 
testify  as  to  what  is  a  full  cargo  for  a  ship  to  carry 
with  safety,5  and  to  express  an  opinion  as  to  the  ef- 
fect of  a  deck  load  upon  the  safety  of  a  vessel.6  They 
have  been  allowed  to  state  that  the  opening  of  the 

1  Western  Ins.  Co.  v.  Tobiu,  32  Ohio  St.  77,  97. 

2  Guiterman  v.  Liverpool,  etc.  Steamship  Co.,  83  N.  Y.  358. 

3  Western  Ins.  Co.  v.  Tobin,  32  Ohio  St.  77,  92. 

4  Steamboat  v.  Logan,  18  Ohio,  375.    And  see  Zugasti  v.  Lamer,  12 
Moore  P.  C.  331,  336. 

fi  Ogden  v.  Parsons,  23  How.  167. 

6  Lapham  v.  Atlas  Ins.  Co.,  24  Pick.  (Mass.)  1. 


232  EXPERT   TESTIMONY. 

garboard  seam  in  a  vessel  was  due  to  the  working 
of  the  stem.1  Upon  the  question  of  negligence  in 
mooring  a  vessel,  the  ship's  keeper  has  been  held 
competent  to  testify  as  an  expert,  as  to  the  condi- 
tions of  the  fastenings  of  the  vessel  as  to  safety.2  A 
shipwright  who  has  examined  a  decayed  vessel  may 
give  his  opinion,  founded  on  the  condition  of  the 
timbers  at  the  time  of  his  examination,  whether  a 
person  could  have  removed  a  part  of  the  ' '  thick 
streak"  some  months  before,  without  discovering 
that  the  timber  under  it  was  decayed.3  The  opinion 
of  nautical  experts  are  admissible  upon  the  question 
whether  an  injured  boat  was  worth  repairing.4  But 
it  has  been  held  that  one  experienced  in  raising 
sunken  boats  and  repairing  them,  and  who  was  ac- 
quainted with  the  boat  in  question,  could  not  express 
an  opinion  as  to  what  would  be  the  expense  of  rais- 
ing and  repairing  it;  that  he  might  state  the  partic- 
ulars, but  the  jury  should  compute  the  expense,  as 
it  was  a  matter  not  lying  peculiarly  within  the 
knowledge  of  experts.5  On  the  other  hand,  one  who 
had  worked  in  a  ship-yard,  and  had  been  the  owner 
of  vessels,  has  been  permitted  to  testify  as  to  the 
difference  in  value  of  a  vessel  as  repaired,  and  wrhat 
her  value  would  have  been,  if  repaired  according 
to  contract.6  And  an  expert  in  the  wrecking  busi- 
ness has  been  allowed  to  state  whether  a  sunken  tug, 
which  he  had  examined,  could  be  raised  as  a  whole, 
and  to  express  an  opinion  as  to  its  value  when  raised 


1  Paddock  v.  Commonwealth  Ins.  Co.,  104  Mass.  521,  529. 

2  Moore  v.  Westervelt,  9  Bos.  (N.  Y.)  559. 
8  Cook  v.  Castner,  9  Cush.  (Mass.)  266.' 

4  Steamboat  v.  Logan,  18  Ohio,  375. 

5  Paige  v.  Hazard,  5  Hill  (N.  Y.),  604. 

«  Sikes  v.  Paine,  10  Ired.  (N.  C.)  Law,  282. 


TESTIMONY    OF    NAUTICAL    MEN.  233 

in  comparison  with  the  cost  of  raising  it.1  Sailing 
rules  and  regulations,  prescribed  by  law,  of  course, 
furnish  the  paramount  rule  of  decision  upon  ques- 
tions of  navigation.  But  where  in  any  case  a  dis- 
puted question  of  navigation  arises,  in  regard  to 
which  neither  the  law  nor  the  rules  of  the  court  reg- 
ulating admiralty  practice  have  made  provision,  then 
the  evidence  of  nautical  experts  is  admissible  as  to 
the  general  usage  in  such  cases.2  Experienced  nav- 
igators and  masters  of  vessels  have  been  permitted 
to  express  an  opinion  that  a  deposit  of  coin  under 
the  ballast,  or  under  the  cargo,  was  unusual,  and 
increased  the  hazards  and  risk  of  loss  to  which  the 
coin  was  exposed.3  So  one  who  has  followed  the  sea 
for  forty  years  has  been  allowed  to  express  an  opin- 
ion as  to  whether  an  article  was  properly  stowed  on 
a  boat.4  "  What  is  a  competent  crew  for  the  voy- 
age; at  what  time  such  crews  should  be  on  board; 
what  is  proper  pilot  ground;  what  is  the  course  and 
usage  of  trade  in  relation  to  the  master  and  crew  be- 
ing on  board,  when  the  ship  breaks  ground  for  the 
voyage;  are  questions  of  fact  dependent  on  nautical 
testimony."5 

A  pilot  who  knew  the  place  of  the  disaster,  and 
the  pilot  in  charge  of  the  boat  at  the  time,  have  been 
held  competent  to  testify  as  to  whether  it  was  proper 
to  suffer  the  pilot  to  pilot  the  boat  at  the  time  and 


1  Blanchard  v.  New  Jersey  Steamboat  Co.,  3  N.  Y.  Sup.  Ct.  771. 

2  The  City  of  Washington,  92  U.  S.  31. 

3  Leitch  v.  Atlantic  Mutual  Ins.  Co.,  66  N.  Y.  100,  106;  s.  c.,  5  Ins.  L. 
J.  775. 

4  Price  v.  Powell,  3  N.  Y.  322. 

5  McLanahan  v.  Universal  Ins.  Co.,  1   Pet.  170,  183,  per  Mr.  Justice 
Story. 


234  EXPERT    TESTIMONY. 

place  of  the  accident.1  And  a  mate  of  a  steamboat 
who  had  been  engaged  eight  or  ten  years  in  naviga- 
tion, and  who  saw  the  collision  in  question,  has  been 
allowed  to  testify  that  the  sunken  boat  was  not  car- 
rying a  proper  light  at  the  time  of  the  accident.2 
But  one  who  is  not  an  expert  is  incompetent  to  ex- 
press an  opinion  as  to  the  sea-worthiness  of  a  float- 
ing dock.3  Where  it  was  claimed  that  the  length  of 
the  shaft  caused  a  boat  to  settle  by  the  stern,  and 
the  journals  to  heat  and  bind,  it  was  held  that  an 
expert  could  be  asked  whether  the  boat  settled  more 
than  it  ought  to,  or  than  was  usual.4  In  the  same 
case  it  was  held  that  an  expert  could  not  be  allowed 
to  express  an  opinion  as  to  the  course  which  the 
owner  of  a  steamer  ought,  as  a  prudent  man,  to  take 
as  to  the  laying  up  for  examination  and  repairs  on 
discovering  defects  in  the  engine. 

Expert  testimony  as  to  whether  under  the  circum- 
stances it  was  the  exercise  of  good  seamanship  and 
prudence  to  attempt  to  have  a  vessel,  which  had 
sprung  a  leak,  towed  to  her  place  of  destination,  in- 
stead of  putting  in  to  a  near  port  for  repairs,  has 
been  held  admissible.5  And  a  question  has  been 
allowed  which  asked  a  nautical  expert  whether,  on 
the  evidence  already  given,  he  was  of  the  opinion 
that  a  collision  between  the  ships  could  have  been 
avoided  by  proper  care  on  the  part  of  the  defendant's 
servants.8  When  the  question  was  whether  the 
crew  of  a  boat  at  a  particular  time  were  sufficient  to 
properly  run  her,  the  opinion  of  a  boatman  has  been 

1  Hill  v.  Sturgeon,  28  Mo.  323. 

2  Weaver  v.  Alabama,  etc.  Co.,  35  Ala.  176. 

3  Marcy  v.  Sun  Ins.  Co.,  11  La.  Ann.  748. 

*  Clark  v.  Detroit  Locomotive  Works,  32  Mich.  348. 
5  Union  Ins.  Co.  v.  Smith,  124  U.  S.  405. 
«  Fenwick  v.  Bell,  1  C.  &  K.  312. 


TESTIMONY    OF    NAUTICAL    MEN.  235 

held  admissible.1  The  opinion  of  lumbermen  and 
pilots  have  been  held  admissible  on  the  question 
whether  a  place  in  a  river  where  a  raft  was  moved 
was  a  safe  place  to  move  it.2  The  opinion  of  a  nau- 
tical expert  has  been  received  on  the  question 
whether  it  was  good  seamaship  to  leave  a  barge 
moored  with  a  falling  tide.3  And  the  opinion  of  a 
harbor  master  who  had  observed  the  vessel  at  the 
time  has  been  held  admissible  on  the  question 
whether  a  vessel  in  entering  the  harbor  had  been 
skillfully  handled  by  the  sailing  master.4  The  opin- 
ion of  a  ship  captain  has  been  received  as  to  the 
necessity  for  a  jettison,5  and  whether  a  vessel  could 
prudently  take  more  than  a  certain  amount  of  cargo.' 
A  witness  who  had  been  an  engineer  and  an  as- 
sistant engineer  on  different  steamers,  was  familiar 
with  the  operation  of  tugs  about  the  harbor,  and 
who  at  the  time  of  the  accident,  and  for  some  years 
prior,  was  foreman  of  an  elevator,  and  during  that 
time  had  frequent  and  constant  opportunities  of  ob- 
serving the  way  in  which  the  tug  brought  vessels 
into  the  wharf  at  the  elevator,  has  been  held  com- 
petent to  give  an  opinion,  as  an  expert,  upon  the 
state  of  the  case  as  he  observed  it,  as  to  whether  a 
vessel  was  skillfully  or  negligently  brought  to  the 
pier  by  the  captain  of  the  tug.7  The  opinion  of  a 
boat  builder  has  been  received  as  to  the  damage 
done  to  a  boat  negligently  run  down  and  sunk.8 

1  McCreary  v.  Turk.  29  Ala.  244. 

2  Hayward  v.  Knapp,  23  Minn.  430. 

3  Leary  v.  Woodruff,  76  X.  Y.  617. 

4  Ward  v.  Salisbury,  12  111.  369. 

5  Price  v.  Hartshorn,  44  Barb.  655;  44  X.  Y.  94. 
«  Weston  v.  Foster,  2  Curt.  C.  C.  119. 

7  Baltimore  Elevator  Co.  v.  Xeal,  65  Md.  438. 
Paige  v.  Hazard,  5  Hill,  603. 


236  EXPERT    TESTIMONY. 

§  104.  Testimony  of  Railroad  Men. — All  expe- 
rienced railroad  man,  who  has  made  a  business  of  the 
running  and  management  of  railroads,  is  as  fairly 
an  expert  as  one  skilled  in  any  other  art,  and  he 
may  give  testimony  as  an  expert  in  questions  of  rail- 
road management.  The  running  and  management 
of  railways  is  so  far  an  art,  outside  of  the  experience 
and  knowledge  of  ordinary  persons,  as  to  render  the 
opinions  of  persons  skilled  therein  admissible  in  ev- 
idence.1 The  testimony  of  such  witnesses  has  been 
received  in  numerous  cases. 

Engineers.  —  A  locomotive  engineer  has  been 
allowed  to  testify  as  to  the  speed  that  is 
usual  and  considered  safe  in  ' i  backing ' '  an 
engine  drawing  a  train  after  dark,  and  to 
state  the  effect  of  an  engine  striking  an  an- 
imal, when  running  backward,  and  explain  the 
structure  of  a  locomotive  tender.2  An  engineer  in 
charge  of  a  train  of  cars  has  been  permitted  to  ex- 
press an  opinion  as  to  the  possibility  of  avoiding  an 
injury  to  animals,  struck  by  the  locomotive,  the 
opinion  being  given  in  view  of  the  distance  between 
the  animals  and  the  train,  when  the  former  came 
upon  the  track.3  One  who  testified  that  he  had 
charge  of  a  stationary  steam  engine,  and  who  did 
not  claim  to  be  a  practical  engineer,  or  a  first-class 
locomotive  engineer,  but  who  had  fired  and  handled 
a  locomotive,  and  understood  an  engine,  has  been 
held  competent  to  testify  as  an  expert,  as  to  the  ef- 
fect of  a  leaky  throttle  valve  upon  the  handling  and 

1  Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  335 ;  Macon, 
etc.  R.  R.  Co.  v.  Johnson,  38  Ga.  409,  435;  Illinois  Central  R.  R.  Co.  v. 
Reedy,  17  111.  580. 

2  Cooper  v.  Central  Railroad  of  Iowa,  44  Iowa,  140. 

3  Bellefootain,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333. 


TESTIMONY    OF    RAILROAD    MEN.  237 

operation  of  a  locomotive.1  A  locomotive  engineer 
who  has  observed  the  nature,  operation  and  effect 
of  sparks  issuing  from  coal  burning  engines,  has 
been  held  competent  to  testify  as  to  the  size  and  ef- 
fect of  sparks  issuing  from  such  engines,  as  to  the 
time  during  which  they  would  remain  alive,  and  as 
to  the  distance  at  which  fire  could  and  could  not  be 
communicated  by  them.2  And  in  the  same  case  it 
was  decided  that  conductors,  master-mechanics  in 
railroad  shops,  brakemen  and  yard-masters,  might 
give  testimony  on  the  same  subject.  A  person 
practiced  in  building  locomotives  and  in  running 
them  on  trial  trips,  has  been  held  competent  as  an 
expert  to  testify  as  to  the  distance  within  which  a 
train  of  cars  might  be  stopped  by  a  steam  break.5 
When  the  question  was  whether  an  engineer  in  charge 
at  the  time  of  an  injury  could  or  could  not  have 
stopped  his  engine  in  time  to  have  prevented  the 
injury,  another  engineer  has  been  allowed  to  give 
his  testimony  on  the  subject,  and  by  way  of  illus- 
trating what  could  be  done  as  to  stopping  an  engine, 
has  been  allowed  to  state  what  he  knew  could  be 
done  by  his  having  done  it.4  The  opinions  of  a  lo- 
comotive engineer  are  admissible  on  the  question 
whether  the  boiler  of  an  engine  was  safe.5  The 
opinion  of  an  engineer  has  been  held  admissible  as 
to  the  distance  in  which  he  could  stop  a  train  going 
down  hill.6  It  has  been  held  that  railroad  engineers 
or  constructors  are  not  the  only  persons  competent 


1  Brabbitts  v.  Chicago,  etc.  R.  R.  Co.,  38  Wis.  289. 

2  Davidson  v.  St.  Paul,  etc.  R.  R.  Co.,  34  Minn.  51. 

3  Eckert  v.  St.  Louis,  etc.  R.  R.  Co.,  13  Mo.  App.  352. 

4  Augusta,  etc.  R.  R.  Co.  v.  Dorsey,  68  Ga.  228,  235. 

5  Chicago,  etc.  R.  R.  Co.  v.  Shannon,  43  HI.  339. 

6  Maher  v.  Atlantic,  etc.  R.  R.  Co.,  64  Mo.  267. 


238  EXPERT    TESTIMONY. 

to  give  an  opinion  as  to  how  the  running  off  of  cars 
on  the  inside  of  a  curve,  instead  of  the  outside, 
could  be  accounted  for;  but  that  prima  facie  the 
question  could  be  answered  by  any  person  acquainted 
with  the  elementary  principles  of  mechanism,  and 
experts  only  in  that  branch  of  science.1  And  in  an 
action  against  a  railway  company  for  the  negligent 
killing  of  a  person  on  the  track,  it  appearing  that  at 
the  time  of  the  accident  strangers  were  in  the  cab 
of  the  engine  with  the  engineer,  the  latter  has  been 
permitted  to  testify  that  their  presence  did  not  in- 
terfere with  the  performance  of  his  duties,  it  being- 
thought  that  the  jury  could  not  judge  of  this  fact 
as  well  as  the  witness.2 

Conductors.  —  A  railroad  conductor  has  been 
allowed  to  testify  concerning  the  duties  of  an 
engineer  as  to  looking  forward,  the  court  say- 
ing :  ''Certainly  one  who  is  in  authority  over 
an  engineer  whose  duty  is  to  obey,  would  be 
competent  to  testify  as  to  what  those  duties 
were."  And  when  the  question  was  whether 
at  the  time  of  an  accident  the  brakemen  were  in 
their  proper  places,  it  was  held  that  the  opinion  of 
one  who  had  been  brakeman,  engineer  and  con- 
ductor was  admissible.4  And  the  opinion  of  a  rail- 
road conductor  has  been  held  admissible  on  the 
question  whether  certain  railroad  ties  were  fit  for 
use.5  Railroad  conductors  are  competent  to  testify 
as  to  the  means  of  stopping  a  train  of  cars.6  But  it 


1  Murphy  v.  N.  Y.,  etc.  R.  R.  Co.,  66  Barb.  125. 

2  Marcott  v.  Marquette,  etc.  R.  R.  Co.  49  Mich.  99. 

3  Augusta,  etc.  R.  R.  Co.  v.  Dorsey,  68  Ga.  228,  235. 

4  Cincinnati,  etc.  R.  R.  Co.  v.  Smith,  22  Ohio  St.  246. 

5  Grand  Rapids,  etc.  R.  R.  Co.  v.  Huntley,  38  Mich.  537. 
8  Mobile,  etc.  R.  R.  Co  v.  Blakely,  59  Ala.  471. 


TESTIMONY    OF    RAILROAD    MEN.  239 

has  been  held  that  a  conductor  was  not  qualified  to 
express  an  opinion  as  to  whether  a  car  would  have 
turned  over  at  the  time  the  accident  occurred  if  such 
chains,  as  were  subsequently  placed  on  the  car,  had, 
at  the  time  of  the  accident,  connected  the  truck  with 
the  body  of  the  car.  A  conductor  was  said  to  have 
no  peculiar  knowledge  on  that  subject.1  And  a 
conductor  has  not  been  allowed  to  express  the  opin- 
ion that  if  the  brakeman  had  held  on  to  his  brake 
and  exercised  ordinary  care  he  would  not  have  been 
thrown  from  his  car.2  His  opinion  was  not  inad- 
missible as  coming  from  a  conductor,  but  because 
the  question  involved  was  not  one  of  science  or 
skill.  One  who  had  been  a  brakeman  before  he  be- 
came a  conductor  has  been  allowed  to  testify  that 
the  train  ought  to  have  been  stopped  quicker  than 
it  was,  and  in  from  three  to  live  minutes.' 

Other  Persons.  —  A  brakeman  is  competent 
to  testify  as  to  the  effect  produced  upon  a 
train  of  cars  by  the  sudden  turning  on  of  steam 
after  the  speed  of  the  train  has  been  checked 
by  the  brakes.*  And  one  wrho  has  been  a  brake- 
man for  several  years  has  been  held  competent 
to  state  his  opinion  as  to  the  rate  of  speed  a  train 
was  running  at  the  time  of  an  accident.5  The  com- 
petency of  witnesses  to  testify  as  to  the  speed  of 
trains  is  subsequently  more  fully  considered.  A 
locomotive  fireman  of  four  years'  experience  has 
been  allowed  as  an  expert  to  state  his  opinion  as  to 


1  Bixby  v.  Montpelier,  etc.  R.  R.  Co.,  49  Vt.  123. 

2  Gavisk  v.  Pacific  R.  R.  Co.,  49  Mo.  274. 

3  Freeman  v.  Travelers'  Insurance  Co.,  144  Mass.  572. 

4  Whitsett  v.  Chicago,  etc.  R.  K.  Co.,  67  Iowa,  150. 

5  Louisville,  etc.  R.  R.  Co.  v.  Shires,  108  111.  617. 


240  EXPERT   TESTIMONY. 

the  time  or  distance  within  which  a  given  train, 
under  a  given  set  of  circumstances,  could  be  stop- 
ped.1 

The  road-master  of  a  railroad,  whose  duty  it  was 
to  receive  and  inspect  ties,  has  been  allowed  to 
testify  as  to  the  quality  of  certain  railroad  ties.2 

One  who  had  been  traveling  as  a  mail  agent 
regularly  for  two  years  on  the  cars  has  been  allowed 
to  answer  the  question,  "at  what  rate  of  speed 
should  the  train  have  been  running  to  stop  at  the 
usual  stopping  place?"  The  court  in  the  case  above 
cited  said,  "to  constitute  an  expert,  it  cannot  be 
necessary  that  one  should  be  connected  with  the 
management  of  the  train.  If  he  is  in  position  to 
witness  the  result  of  the  management,  and  to  ob- 
serve the  effect  when  the  means  of  checking  the 
train  are  applied,  he  may  be  as  competent  to  express 
a  satisfactory  opinion  as  the  conductor,  the  brake- 
man,  or,  possibly,  even  the  engineer." 

One  who  had  been  the  president  of  two  or  three 
city  railroads,  and  had  been  engaged  for  some  years 
in  building  such  roads,  has  been  allowed  to  give  his 
opinion  as  to  whether  a  street  rail  had  been  pro- 
perly laid.4 

The  opinion  of  a  railroad  superintendent,  upon  a 
matter  within  the  scope  of  his  employment,  "stands 
upon  the  footing  of  an  opinion  of  an  expert." 

A  witness  who  testified  that  he  was  in  the  business 
of  railroad  supplies,  and  that  he  was  somewhat 
familiar  with  railroad  brakes,  and  with  the  oper- 

1  Grinnull  v.  Chicago,  etc.  R.  R.  Co. .73  Iowa,  93. 

2  Jeffersonville  R.  R.  Co.  v.  Lanham,  27  Ind.  171. 

8  Detroit,  etc.  R.  R.  Co.  v.  Van  Steinburg,  17  Mich.  99. 

<  Carpenter  v.  Central  Park,  etc.  R.  R.  Co.,  11  Abh.  Pr.  (N.  S.)  416. 

5  Mason,  etc.  R.  R.  Co.  v.  Johnson,  38  Ga.  409. 


TKSTIMO.XY    OF    KAILKOAl-     MK.\.  '_M  ] 

ation s  of  them,  and  had  used  them  on  a  railroad, 
has  been  allowed  to  state  within  what  distance  sudi 
a  train  as  that  in  question  could  be  stopped  with 
ordinary  brakes,  on  an  ascending  grade,  running  at 
such  a  rate  that  a  man  could  run  faster  than  the 
train  was  going.1 

A  machinist  connected  many  years  with  railroads 
lias  been  held  competent  to  express  an  opinion  as  t<> 
what  threw  a  train  of  cars  from  the  track.1' 

A  witness  who  had  been  employed  in  railroad 
work  for  twenty-five  years,  and  part  of  the  time  had 
been  in  charge  of  a  turn-table,  has  been  held  com- 
petent to  answer  the  question:  ''Would  it  be  practi- 
cable to  lock  or  fence  turn-tab!  In  a  case  in 
South  Carolina  a  witness,  who  was  personally  ac- 
quainted with  the  character  and  location  of  a  turn- 
table, was  allowed  to  give  his  opinion  as  to  the  dan- 
ger of  it/  And  in  an  action  for  injuries  caused  by 
a  turn-table  used  on  a  street  railway,  a  witness  shown 
to  be  an  expert  was  allowed  to  testify  as  to  the  kind  of 
turn-tables  in  general  use,  as  to  whether  the  one  in 
question  was  of  the  most  approved  kind  in  use,  and 
as  to  its  defects  and  how  they  might  be  remedied.' 

In  the  case  last  cited  a  carpenter  and  joiner 
who  had  been  connected  writh  a  street  railway  for 
four  years,  and  had  made  turn-tables  for  it.  was  held 
competent  to  testify  whether  a  certain  turn-table 
was  safe. 

A  station  agent  who  received  and  shipped  all  goods 
at  his  station  has  been  allowed  to  give  his  opinion 

1  Mott  v.  Hudson,  etc.  R.  R.  Co.,  S  Bos.  (X.  Y.)  345. 

2  Seaver  v.  Boston,  etc.  R.  R.  Co.,  14  Gray  (Mass.).  4<iO. 

3  Kolsti  v.  Minneapolis,  etc.  R.  R.  Co.,  32  Minn.  133. 

4  Bridger  v.  Railroad  Company.  -J.~>  S.  C.  24. 
J  Fitts  v.  C.  C.  R.  R.  Co..  -V.)  Wis.  323. 

(16) 


242  EXPERT    TESTIMONY. 

as  to  whether  it  would  have  interfered  with 
the  transaction  of  the  shipping  business  at  that 
point  to  have  maintained  a  fence  along  the  railroad 
tracks.1 

It  appearing  that  a  car  load  of  stock  in  transit 
was  suffering  greatly,  probably  from  heat,  it  was 
held  not  objectionable  to  ask  an  expert  what  course 
the  carrier  might  properly  pursue  for  their  relief.2 

When  the  question  was  as  to  the  competency  of 
an  express  messenger  and  baggage-man,  it  was  held 
that  persons  shown  to  have  had  long  experience  as 
express  messengers  and  baggage-men  could  not  ex- 
press their  opinion  as  to  the  party's  incompetency 
to  perform  the  duties  of  such  a  position.  The  ques- 
tion was  not  regarded  as  being  one  of  science  or 
skill.3 

When  a  train  was  running  backward  at  the  time 
of  an  accident  and  there  was  evidence  that  the  track 
was  in  the  same  condition  at  that  time  as  when  seen 
by  the  expert,  the  latter  was  allowed  to  state 
whether,  if  the  track  was  in  the  same  condition,  it 
would  be  more  dangerous  to  run  the  train  backward 
than  forward.* 

Where  the  question  was  whether  a  rail  was  de- 
fective, or  whether  it  had  been  maliciously  cut,  a 
newspaper  editor,  who  had  visited  the  scene  of  the 
accident  for  the  purpose  of  reporting  it,  and  had 
testified  that  during  a  period  of  twenty  years  he 
had  visited  "dozens  of  railroad  accidents,"  and  had 
examined  them  for  the  purpose  of  reporting  the 
probable  cause  of  the  accident,  was  asked  to  state 

1  Robinson  v.  St.  L.,  etc.  R.  R.  Co.,  21  Mo.  App.  141. 

2  Lindsley  v.  Chicago,  etc.  R.  R.Co.,  36  Minn.  540. 

3  Moore  v.  Chicago,  etc.  R.  R.  Co.,  65  Iowa,  505. 

4  Kuhns  v.  Wisconsin,  etc.  R.  R.  Co.,  70  Io\va,  561. 


TESTIMONY    OF    RAILROAD    MEN. 

whether  he  had  arrived  at  any  conclusion  as  to  tin- 
cause  of  the  accident.  The  court  held  that  it  wa> 
no  error  to  exclude  his  opinion.1 

So  it  has  been  held  that  a  witness  of  long  railroad 
experience  cannot  be  allowed  to  testify  whether  tin- 
blowing  of  a  steam-whistle  was,  under  the  circum- 
stances of  the  case,  prudent.2  It  has  been  held  no 
error  to  refuse  the  testimony  of  switchmen  to  show 
that  in  their  opinion  it  was  not  necessary  for 
another  switchman  to  have  been  where  he  was  when 
he  received  the  injury  complained  of.  The  opinions 
of  the  witnesses,  though  experts,  were  inadmissible, 
as  the  subject-matter  of  inquiry  did  not  partake  of 
the  nature  of  a  science  so  as  to  require  a  course  of 
previous  habit  or  study  to  an  attainment  of  a  knowl- 
edge of  it.3 

Speed  of  Train .  s — From  what  has  been  already  said  it 
appears  that  the  opinions  of  experienced  railroad  men 
are  received  when  the  question  is  as  to  the  space  with- 
in which  a  train  may  be  stopped.  The  question  is  a 
proper  one  for  expert  testimony.  In  a  case  in  the 
St.  Louis  Court  of  Appeals,  recently  decided,  the 
court  in  discussing  this  matter  say:  "All  men  who 
live  on  or  near  the  line  of  a  railroad  may  have  a 
general  knowledge  on  the  subject,  but  a  correct  and 
reliable  judgment  can  only  be  attained  by  some 
practical  experience.  Just  within  what  distance  a 
train  might  be  stopped  in  a  given  case,  with  safety 
to  property,  and  the  lives  of  persons  thereon,  would 
depend  upon  the  speed  of  the  train  at  the  time,  the 
grade  of  the  track,  the  size  of  the  train,  whether  the 


1  Hoyt  v.  Long  Island  R.  R.  Co.,  57  X.  Y.  678. 

2  Hill  v.  Portland,  etc.  R.  R.  Co.,  55  Me.  438.    And  see  p.  16. 

3  Pennsylvania  Co.  v.  Conlan,  101  111.  93.    And  see  p.  14. 


244  EXPERT    TKSTI.MO.XY. 

cars  were  loaded  or  empty,  and  the  kind  of  brako 
used.  It  is  unreasonable  to  suppose  that  the  judg- 
ment of  a  witness  on  such  a  subject,  who  had  no 
practical  knowledge  or  experience  in  the  running  of 
trains,  or  had  never  given  the  subject  special  stud}' 
and  investigation,  would  be  worth  any  more  than 
the  judgment  of  the  jurors  themselves."  It  was 
accordingly  held  error  to  allow  a  witness  to  e.\]>r<  — 
an  opinion  on  such  a  subject,  who  testified  that  he 
had  never  run  an  engine,  knew  nothing  about  the 
construction  of  trains  and  had  never  worked  on  a 
railroad,  but  who  had  frequently  been  about  the 
railroad,  had  often  seen  trains  running  at  the  rate 
of  speed  that  the  train  in  question  was  running, 
flagged  and  stopped.  And  in  the  same  case  it  was 
also  held  error  to  allow  a  witness  to  express  an  opin- 
ion on  the  question  who  had  never  run  an  engine. 
but  had  worked  as  a  section  hand  on  a  railroad  for 
two  years,  had  frequently  seen  trains  flagged,  and 
had  himself  flagged  them  half  a  dozen  times.1  This 
matter  is  elsewhere  alluded  to,  and  attention 
called  to  the  language  of  the  Supreme  Court  of 
Michigan  on  the  question  of  the  competency  of  wit- 
nesses to  give  opinion  evidence  on  this  subject. 

Questions  as  to  the  speed  with  which  trains  were 
moving  are  not,  strictly  speaking,  scientific  inquiries, 
but  any  man  possessing  a  knowledge  of  time  and 
distances  is  usually  competent  to  express  an  opinion 
upon  the  subject.2  Witnesses  living  near  a  railroad 
and  habitually  observing  the  passage  of  trains,  have 


1  Gouriey  v.  St.  Louis,  etc.  R.  R.  Co.,  Mo.  App.  s7,  !>4  (188!)). 

2  Detroit,  etc.  R.  R.  Co.  v.  Van  Steinburg.  17  Mich.  !)9:    Guggruheim 
v.  Lake  Shore,  etc.R.  R.  Co.,  GO  Mich.  150. 


TIXH.Mo.XY    OK    [NSUBANCE    MKX.  24") 

therefore  been  allowed  to  express  an  opinion  as  to 
the  velocity  witli  which  a  train  was  moving.1  The 
Supreme  Court  of  Michigan,  while  adhering  to  the 
doctrine  that  the  speed  of  trains  is  not  properly  a 
scientific  question,  has  said  in  regard  to  opinions  of 
persons  riding  in  the  cars,  and  not  observing  from 
the  outside:  "We  are  not  prepared  to  say  they  may 
not  be  received,  but  \ve  think  they  should  be  ex- 
cluded, unless  the  witnesses  first  show  such  ex- 
tended experience  and  observation  as  to  qualify 
them  for  forming  such  opinions  as  would  be  reliable. 
It  is  not  presumable  that  ordinary  railway  travelers 
usually  form  such  habits. "  And  in  a  casein  the 
Supreme  Court  of  Wisconsin,  the  court  holds  that  a 
non-expert  witness  may  testify  as  to  his  estimate  of 
the  rate  of  speed  at  which  a  railroad  train  was  mov- 
ing, but  declares  that  such  an  estimate  is  very  un- 
satisfactory proof,  and  should  be  received  with  great 
caution.3 

A  railroad  contractor  has  been  allowed  to  testify 
that  he  thought  a  certain  culvert  was  sufficiently 
large  for  the  size  of  the  stream.4 

§  105.  Testimony  of  Insurance  Men. — The  opin- 
ions of  men  who  are  skilled  in  matters  of  insurance 
are  received  in  evidence  on  questions  of  insurance 
which  lie  beyond  the  ordinary  and  common  knowl- 
edge of  mankind.  For  instance,  the  opinions  of 
such  witnesses  have  been  received:  1.  As  to  the 
of  concealed  facts.  It  must  be  said  that 


1  Nutter  v.  Boston,  etc.  R.  R.  Co.,  60  N.  H.  483. 

2  Grand   Rapids,  etc.  R.  R.  Co.  v.  Huntley,   38  Mich.  .137.     And   see 
Guggenheim  v.  Lake  Shore,  etc.  R.  R.  Co.,  66  Mich.  150. 

Hoppe  v.  Chicago,  etc.  R.  Co.,  61  Wis.  357. 
4  Emery  v.  Raleigh,  etc.  R.  R.  Co..  102  X.  C.  217. 


24()  EXPERT    TKtJTIMONY. 

there  has  been  a  decided  conflict  of  authority,  both 
in  this  country  and  in  England,  on  the  right  of  un- 
derwriters, and  others  skilled  in  the  business  of  in- 
surance, to  testify  as  to  the  materiality  of  concealed 
facts  in  applications  for  insurance.  So  marked  has 
been  the  conflict  of  authority  on  this  question  in 
England,  that  one  of  the  most  eminent  of  the  En- 
glish writers  on  the  law  of  evidence  declares  that  no 
satisfactory  answer  can  be  given  to  it.1  We  believe, 
however,  that  the  better  rule  is  to  consider  the  ad- 
missibility  of  such  evidence  as  dependent  on  the 
nature  of  the  facts  concealed.  It  is  evident  that  those 
facts  may  be  of  such  a  nature  that  ordinary  jury- 
men would  be  perfectly  competent  to  decide  the 
question  of  their  materiality,  in  which  case  there 
would  seem  to  be  no  justification  for  the  admission 
of  expert  testimony.  On  the  other  hand,  the  facts 
may  be  so  special  and  technical  in  their  nature,  es- 
pecially in  questions  of  marine  insurance,  that  per- 
sons without  previous  experience  in  the  business  of 
insurance  would  be  unable,  from  the  very  nature  of 
the  case,  to  arrive  at  any  intelligent  conclusion,  in 
which  case  it  seems  that  there  would  exist  a  necessity 
for  the  admission  of  expert  testimony.2 

As  Mr.  Justice  RANNEY  expressed  it  in  a  case  de- 
cided*in  Ohio  as  long  ago  as  1853:  "If  the  answer 
can  be  given  from  ordinary  experience  and  knowl- 
edge, the  jury  must  respond  to  it  unaided;  if  the 
effects  of  such  a  cause  are  only  known  to  persons  of 
skill,  and  are  to  be  determined  only  by  the  applica- 
tion of  some  principle  of  science  or  art,  such  per- 


1  2  Taylor's  Ev.,  1420. 

2  Sec.  5  Am.  Law  Review,  237;  1    Arnold'*  Ins.  573;  2   Duer's   Ins. 
780,  n.:  1  Smith's  L.  C.  490,  n.;  Hill  v.  Lafayette  Ins.  Co.,  2  Mich.  470. 


TESTIMONY    OF    INSUKAXi  K    MEN.  217 

sons  may  give  the  results  of  their  own  investigation 
and  experience  to  the  jury  in  the  way  of  opinions, 
the  better  to  enable  them  to  come  to  a  correct  con- 
clusion.'' 

We  think  the  weight  of  authority  in  this  country 
is  in  favor  of  the  reception  of  such  evidence  in  those 
••uses  in  which  the  facts  are  so  technical  and  special 
as  not  to  lie  within  the  common  observation  of  men 
in  general.2  And  when  the  testimony  of  underwrit- 
ers is  received  as  to  the  materiality  of  facts,  the 
question  is  not  as  to  the  effect  which  such  facts,  if 
disclosed,  would  have  had  on  the  particular  witness, 
but  on  underwriters  generally.  "  I  do  not  allow  you 
to  ask  the  witness  what  he  himself,  as  an  under- 
writer, would  have  done ;  but  whether,  from  his 
knowledge  of  the  business,  he  is  able  to  state  that 
the  facts  in  question  would  or  would  not  have  an 
influence  with  underwriters  generally  in  determining 


1  Hartford  Protection  Co.  v.  Harmer,  2  Ohio  St.  452,  457. 

2  Seaman  v.  Fonerau,  2  Strange,  1183:  Chaurand  v.  Angerstein,  Peake 
X.  P.  C.  61 :  Haywood  v.  Rodgers,  4  East,  590;    Littledale  v.  Dixon,  1 
Bos.  &  Pul.  151 ;  Richards  v.  Murdock,  10  B.  &  C.  537 ;  Elton  v.  Larkins. 
5  C.  &  P.  385;  Berthon  v.  Loughraan,  2  Starkie,  258;  Quinn  v.  National, 
etc.  Ins.  Co.,  1  Jones  &   Carey  (Ir.)  316;  s.  c.,  1  Benn.  Fire  Ins.  Gas. 
689;  Hawes   v.  N.  E.  Ins.  Co.,  2  Curtis  C.  C.  229;    Moses  v.  Delaware 
Ins.  Co.,  1  Wash.  C.  C.  385;  Marshall  v.  Union  IDS.  Co.,  2  Wash.  C.  C. 
357;    Luce  v.  Dorchester  Ins.  Co.,  105  Mass.  297;    Daniels  v.  Hudson 
River  Fire  Ins.  Co.,  12  Cush.  (Mass.)  416;  Kern  v.  South  St.  Louis  Mu- 
tual Ins.  Co.,  40  Mo.  19;  Cornish  v  Fa'-ra  Buildings  Fire  Ins.  Co.,  74  N. 
Y.  295;  Hobby  v.  Dana,  17  Barb.  (N.  Y.)  Ill;  s.  c.,  3  Benu.  Fire  Ins. 
Cas.  581;  M'Lanahan  v.  Universal  Ins.  Co.,  1  Pet.  170,  187;  Hartman  v. 
Keystone  Ins.  Co..  21   Pa.  St.  466;  Mitchell  v.  Home  Ins.  Co.,  32  Iowa. 
424;  Stenuett  v.  Pa.  Fire  Ins.  Co.,  68  Iowa,  674,  676.    But  see  Carter  v. 
Boehm,  2  Burr.  1905;  Durrell  v.  Bederly,  Hnlt,X.  P.  Cases,  283;  Camp- 
bell v.Richards,  5  Barn.  &   Ad.  840;  Milwaukee,  etc.  R.  R.  Co.  v.  Kel- 
logg, 94  U.  S.  469;  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  4:>:> : 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  7 '2;  Hill  v,  Lafayette  Ins.  Co..  -' 
Mich.  476;  s   C.,  3  Benn.  Fire  In.s.  Cas.  325;  Summers  v.  U.  S.  Ins.  Co., 
13  La.  Ann.  504:  s.  c.,  1  Bigelow  Ins.  Cas.  131. 


EXPERT    TESTIMONY. 

the  amount  of  the  premiums.  If  his  knowledge 
and  skill  in  this  particular  business  does  enable  him 
to  state  this,  I  think  it  is  legal  evidence.  *  *  * 
Here  the  inquiry  is,  in  substance,  whether  the 
market  value  price  of  insurance  is  affected  by  par- 
ticular facts.  If  the  witness,  being  conversant  with 
the  business,  has  gained  in  the  course  of  his  em- 
ployment a  knowledge  of  the  practical  effect  of  these 
facts,  or  similar  facts,  upon  premiums,  he  may  in- 
form the  jury  what  it  is." 

When  the  question  is  as  to  the  materiality  of  con- 
cealed facts  other  witnesses  than  those  experienced 
in  insurance  may  be  competent.  For  instance,  in 
the  case  of  life  insurance,  if  the  fact  concealed  wen- 
some  bodily  infirmity,  it  would  certainly  be  compe- 
tent to  receive  the  testimony  of  medical  experts  on 
the  question  whether  such  infirmity  was  calculated 
to  shorten  the  life  of  the  insured.  Or  in  the  case 
of  marine  insurance  it  would  be  proper  to  receive 
the  testimony  of  experienced  mariners  or  ship  car- 
penters on  the  question  whether  the  defect  was  such 
as  to  endanger  the  safety  of  the  ship.'2  It  has  been 
held  in  the  Supreme  Court  of  the  United  States. 
that  experts  in  fire  insurance,  accustomed  to  estimat- 
ing and  calculating  the  hazard  and  exposures  to  fire 
from  one  building  to  another,  could  not  testify  that, 
owing  to  the  distance  between  an  elevator  and  a 
mill,  and  the  distance  between  an  elevator  and  some 
lumber  piles,  the  elevator  would  not  be  considered 
as  an  exposure  to  the  mill,  and  would  not  be  consid- 

J  Hawes  v.  X.  E.  Ins.  Co.,  '?  Curtis  C.  C.  229.  And  see  Berthon  v. 
Lougbman,  2  Starkie.  25S.  per  Holroyd.  J. :  llartman  v.  Keystone  In.-. 
Co.,  21  Pa.  St.  466. 

2  Hartford  Protection  Co.  v.  Harmer,  2  Ohio  St.  452,  457:  Leitch.  v. 
Atlantic  Mat.  Ins.  Co.,  66  N.  Y.  100. 


TESTIMONY    OF    IXSTKAXCK    MK.X.  L'| '.  I 

ered  in   fixing   a  rate  thereon,  or  in   measuring  the 
hazard  of  the  mill  or  lumber.1 

2.  As  to  Increase  of  Risk. — The  opinions  of  ex- 
perts have,  in  some  cases,  been  received  on  the  ques- 
tion whether  certain  facts  amounted  to  an  increa-c 
of  risk.'  But  such  opinions  have  likewise  been  held 
inadmissible.'  In  Pennsylvania,  an  insurance  com- 
pany's clerk  has  been  allowed  to  testify  that  a  risk 
would  not  be  taken  at  any  premium,  on  the  life  of 
one  known  to  be  engaged  in  a  certain  occupation.* 
In  the  case  last  cited,  Mr  Chief  Justice  BLACK  said: 
"But  though  the  cases  conflict  seriously,  I  think 
none  of  them  go  so  far  as  to  say  that  one  who  knows 
the  practice,  not  only  of  the  particular  office,  but  of 
insurance  offices  generally,  may  not  give  his  opinion 
of  the  influence  wrhich  a  given  fact  would  have  had 
as  an  element  in  the  contract.  Certainly  this  is  the 
opinion  supported  by  the  strongest  authority  and 
the  best  reasons."  But  in  New  York  it  has  been 
held  improper  to  prove  by  experts,  that  a  person 
who  was  in  the  habitual  use  of  intoxicating  liquors, 
would  not  be  considered  an  insurable  subject.5 

1  Milwaukee,  etc.  R.  R.  Co.  v.  Kellogg,  94  U.  S.  469.    And  see  State  v. 
Watson,  65  Me.  74. 

2  Daniels  v.  Hudson  River  Ins.  Co.,  12  Cusb.416;  Jefferson  Ins.  Co.  v. 
Cotheal,  7  Wend.    72;  Schenck  v.  Mercer  Co. Ins.  Co. ,24  X.  J.  Law. 451 ; 
Mitchell  v.  Home  Ins.  Co.,  32  Iowa.  424;  Cornish  v.  Farm  Buildings  Ins. 
Co.,  74  X.  Y.  295 ;  Kern  v.  South  St.  Louis  Mut.  Ins.  Co.  40  Mo.  19;  Ap- 
pleby  v.  Astor  Fire  In*.  Co.,  54  X.  Y.  253;  Brink  v. Merchants',  etc.  In-. 
Co.  49  Vt.  442. 

3  Joyce  v.  Maine  Ins.  Co.,  45  Me.  169;   Kirkby  v.  Phu'iiix  Ins.  Co.,  !) 
Lea,  142;  Mulny  v.  Mohawk  Valley  Ins.  Co..  5  Gray  (Mass.),  545;  Can- 
nell  v.  Phoenix  Ins.  Co.,  59   Me.  582;    State  v.  Watson,  16   Me.  74,  77; 
Thayer  v.  Providence  Ins.  Co.,  70  Me.  539;  Liverpool,  etc.  Ins.  Co.  v. 
McGuire,  52  Miss.  227;  Franklin  Fire  Ins.  Co.v.  Gruver,  100  Pa.  St.  266; 
Merchants' Ins.  Co.   v.  Dwyer,  1   Posey    (Tex.),   441;  Schwar/bach   v. 
Ohio  Valley  Protection  LTnion,  25  W.  Va.  622. 

4  Hart  man  v.  Keystone  Ins.  Co.,  21  Pa.  St.  466. 

5  Rawl>  v.  Am.  Mut,  Life  Ins.  Co..  27  X.  Y.  282. 


250  EXPERT    TESTIMONY. 

3.  As  to  Increase  of  Pirininm. —  Experts  have 
been  allowed  to  testify  whether  certain  facts,  if  they 
had  been  known,  would  have  increased  the  pre- 
mium.1 In  giving  such  evidence  they  are  really  giv- 
ing testimony  as  to  facts  rather  than  drawing  infer- 
ences from  facts.  The  witness  states,  from  his 
knowledge  of  the  business  of  insurance,  how  certain 
facts  would  influence  underwriters  generally  in  fixing 
the  amount  of  the  premium. 

In  a  case  in  which  the  issue  was  whether  a  mis- 
description  of  the  premises  caused  the  insurance  to 
be  effected  at  a  lower  premium  than  would  other- 
wise have  been  charged,  the  company's  agent, 
through  whom  the  policy  was  issued,  has  been  al- 
lowed to  give  his  opinion  as  to  the  rate  at  which  he 
could  have  procured  insurance  of  the  premises,  as 
they  were,  from  other  companies,  and  his  knowledge 
as  to  the  rate  actually  charged  by  other  companies 
for  the  insurance  of  buildings  of  similar  character.2 

But  the  mere  fact  that  one  is  an  insurance  agent 
does  not- necessarily  show  that  he  is  qualified  to  tes- 
tify as  an  expert  concerning  the  nature  of  a  risk. 
To  be  qualified  to  give  testimony  on  that  point  the 
witness  must  have  become  experienced  in  passing 
on  risks,  or  must  have  acquired  special  knowledge 
on  the  subject.  A  person  may  be  an  insurance 
agent  without  having  that  knowledge — as  in  the 
case  of  a  mere  soliciting  agent." 


1  Hawes  v.  New  Eng.  Mut.  Ins.  Co.,  2  Curt.  C.  C.  229;  Hobby  v.  Dana, 
17  Barb.    (X.  Y.)  Ill;  Moses  v.  Delaware  Ins.  Co.,  1    Wash.  C.  C.  386; 
Merriam  v.  Middlesex  Ins.  Co.,  21   Pick.  162;  Luce  v.  Dorchester  Ins. 
Co.,  105  Mass.  297;  Planters'  Mut.  Ins.  Co.  v.  Rowland,  66  Md.  236,  244. 

2  Martin  v  Franklin  Fire  Ins.  Co.,  42  X.  .1.  Law,  46. 

5  Stennett  v.   Ben.  Fire  Ins.  Co.,  68  Iowa.  674;  Schmitt  v.  Peoria  Ins. 
Co.,  41  111.  296;  s.  c.,  5  Ben.  Fire  Ins.  Cases.  90. 


TKSTIMOXY    OK    CIVIL     KX<;IXEERS.  251 

Where  an  action  was  brought  for  breach  of  con- 
tract, an  insurance  company  having  agreed  to  make 
the  plaintiff  its  agent  and  allow  him  to  remain  such 
for  a  reasonable  time,  insurance  agents  were  allowed 
to  state  what  would  be  considered  a  reasonable  time. 
In  answer  to  the  objection  that  the  question  of  rea- 
sonable time  was  one  of  law  for  the  court,  the  court 
said  :  "But  the  questions  had  reference  to  the  busi- 
ness of  insurance ;  these  witnesses  were  insurance 
agents,  experts  in  that  business ;  neither  court  nor 
jury  could  understand  what  was  a  reasonable  time 
in  such  a  case,  except  upon  proof  made  by  compe- 
tent persons." 

Where  an'action  was  brought  on  a  policy  of  insur- 
ance against  loss  by  fire  on  certain  goods,  it  was 
held  competent,  on  the  question  as  to  the  value  of 
the  goods  after  the  fire,  to  ask  an  expert  whether 
there  was  any  better  mode  of  disposing  of  such 
goods  than  the  one  adopted  by  the  plaintiff.2 

$  106.  Testimony  of  Civil  Engineers. — Civil 
engineers  are  frequently  called  on  to  give  expert 
testimony.  The  opinion  of  civil  engineers,  experi- 
enced in  the  construction  of  bridges,  has  been  re- 
ceived as  to  the  strength  of  construction  and  safety 
of  a  bridge.3  A  civil  engineer,  experienced  in  judg- 
ing of  the  soundness  of  timbers  in  bridges,  has  been 
allowed  to  express  an  opinion  as  to  whether  one  of 
the  sleepers  in  a  bridge  had  rotted  recently,  or 
whether  the  decay  was  of  some  length  of  time.*  A 
civil  engineer  and  surveyor,  who  had  made  a  sur- 
vey and  map  of  the  land  in  question  has  been  al- 

1  Niagara  Fire  Ins.  Co.  v.  Greene,  77  Ind.  500. 

2  Clement  v.  British  Am.  Assur.  Co.,  141  Mass.  298. 

3  Hart  v.  Hudson  River  Bridge  Co..  84  X.  Y.  56,  60. 
•»  City  of  Indianapolis  v.  Scott.  72  Ind.  196.  203. 


252  EXPERT    TESTIMONY. 

lowed  to  testify  how  much-  ground  would  be  over- 
flowed at  a  given  height  of  water.1  Such  witnesses 
liavo  also  heen  permitted  to  state  the  rules  for  the 
construction  of  cuts  and  embankments."'  While  in 
a  controversy  as  to  what  constituted  an  approach 
to  a  railroad  bridge,  where  the  land  adjoining  the 
river  bank  was  low  and  often1*  overflowed,  and  the 
track  was,  in  consequence,  elevated  and  rip-rapped, 
and  as  to  whether  such  rip-raps  and  dikes  constitu- 
ted such  an  approach,  the  opinions  of  experienced 
engineers  have  been  held  admissible.1  So  engineers 
have  been  permitted  to  testify,  judging  from  the 
situation  of  the  banks,  the  course  of  the  winds  and 
tides,  and  the  shifting  of  the  sand,  that  a  certain 
bank  was  not  the  occasion  of  a  harbor's  choking  and 
filling  up  by  stopping  the  back  water.4  And  engi- 
neers who  had  taken  the  comparative  levels  of  a 
fountain  of  water,  and  of  certain  agricultural  drains 
in  the  same  lot,  and  who  had  examined  the  inter- 
vening subsoil,  have  been  allowed  to  express  an 
opinion  that  the  drains  did  not  lessen  the  quantity 
of  water  in  the  fountain.5  An  engineer  and  lands- 
cape gardener  has  been  permitted  to  express  an 
opinion  as  to  what  certain  land  was  suitable  for.6  The 
opinion  of  an  expert  has  been  held  admissible  as  to 
the  liability  of  a  city  to  inundation',  as  well  as  to  the 
injury  to  a  harbor  by  the  removal  of  the  sand  along 


1  Phillips  v.  Terry,  :i  Abb.X.  Y.  Decis.  607. 

2  Central  R.  R.  Co.  v.  Mitchell,  63  Ga.  173;  s.  C.,  1  Am.  &  Eng.  R.  R. 
Cases,  145. 

3  Union  Pacific  R.  R.Co.  v.  (Hopper.  2  Am.  &  Eng.  R.  R.  Cases,  649. 
*  Folkes  v.   Chadd,  3  Douglas   (26  Eng.   C.  L.  63),   157.     See  also- 

Grigsby  v.  Clear  Lake  Water  Works  Co.,  40  Cal.  396. 
6  Buffum  v.  Harris,  5  R.  I.  250. 
6  Chandler  v.  .Jamaica  Pond  Aqueduct,  125  Mass.  544,  551. 


TKSTIMOXY    OF    STKVKYORS.  253 

the  shore.1  But  a  civil  engineer  is  not  necessarily 
an  expert  as  to  the  construction  of  a  highway."  A 
civil  engineer  who  had  experience  in  the  construc- 
tion of  water-ways,  has  been  allowed  to  testify  as  to 
the  effect  the  erection  of  a  mill-dam  would  have 
upon  the  channel  of  a  stream  above  the  dam.3 

An  engineer  who  had  experience  in  making  plans 
and  estimates  for  the  building  of  bridges  and  had 
superintended  their  construction,  has  been  allowed 
to  testify  as  an  expert  with  regard  to  the  probable 
cost  of  a  bridge,  notwithstanding  the  fact  that  he 
was  without  practical  experience  as  a  bridge  builder.4 
And  an  engineer  who  had  experience  in  the  erection 
of  bridges,  has  been  allowed  to  state  that  it  was  not 
customary  to  have  gates  of  any  kind  on  draw- 
bridges, but  he  was  not  allowed  to  say  whether  it 
was  safe  and  proper  to  have  draws  with  drop  gates 
across  the  foot-path  of  a  bridge  when  the  draw  was 
open,  that  being  matter  of  opinion  and  not  within 
the  range  of  expert  testimony.5  An  engineer  of 
skill  and  experience,  who  had  studied  the  river  and 
tested  its  flow  at  the  points  of  alleged  obstruction 
and  injury,  when  the  action  was  for  damages  for 
the  scouring  of  the  water  on  the  plaintiff's  lands, 
has  been  permitted  to  answer  the  question:  "Art- 
there  any  adequate  causes,  in  your  judgment,  for 
this  (scouring)?1" 

§  107.  Testimony  of  Surveyors. — Cases  ill  which 
surveyors  have  been  called  on  to  give  testimony 

1  Clason  v.  City  of  Milwaukee,  30  Wis.  316. 

-  Benedict  v.  City  of  Fond  du  Lac.  44  Wis.  4'.t5. 

"  Ball  v.  Hardesty.  38  Kan.  540. 

4  Bryan  v.  Town  of  Branford,  50  Conn.  '24('<. 

Hart  v.  H.  R.  Bridge  Co..  84  X.  Y.  56.   See  pp.  15,  16. 
•:  Moyer  v.  X.  Y.  Central,  etc.  R.  R.  Co..  98  X.  Y.  645. 


254  EXPERT    TESTIMONY. 

have  frequently  been  before  the  courts.  Surveyors 
may  give  in  evidence  their  opinion  as  to  the  lo- 
cation of  a  particular  survey.1  A  surveyor,  who  is 
familiar  with  the  peculiar  marks  used  by  the  govern- 
ment surveyors  in  their  public  surveys  may  give  his 
opinion  as  an  expert  whether  a  particular  line  was 
marked  by  them.2  The  opinion  of  a  practical  sur- 
veyor has  been  received  as  to  whether  certain  piles 
of  stones  and  marks  on  trees  were  monuments  of 
boundary.3  And  in  a  contest  as  to  the  true  location 
of  lines  between  adjacent  lot  owners,  a  practical 
surveyor,  who  has  made  an  actual  survey  and  plat 
of  the  lots,  has  been  allowed  to  testify  as  to  the  cor- 
rectness of  the  plat,  and  to  state  the  result  of  his 
survey  as  to  the  location  of  the  lines,  and  of  the 
buildings  and  fences  on  the  lots  with  reference  to 
such  lines.4  Upon  a  question  as  to  the  boundary 
line  between  two  counties,  which  had  never  been 
officially  located,5  it  has  been  held  that  while  the 
opinion  of  a  surveyor  was  competent  evidence  to 
show  that  certain  marks  on  a  tree,  claimed  as  a 
corner,  wrere  corner  or  line  marks,  yet  it  could  not  be 
received  for  the  purpose  of  showing  that  the  tree  was 
the  corner  of  a  particular  grant.6  While  in  an  early 
case  it  was  held  that  the  opinion  of  a  surveyor  was 
admissible  as  to  a  mistake  in  a  survey,7  and  where 
he  would  locate  a  warrant  similar  to  that  under  which 
a  person  held,s  yet  the  rule  is  that  the  opinion  of  a 

1  Jackson  v.  Lambert,  121  Pa.  St.  182. 

2  Brantly  v.  Swift,  24  Ala.  390. 

3  Davis  v.  Mason,  4  Pick.  156;  Knox  v.  Clark,  123  Mass.  21 G. 

4  Messer  v.  Keginnitter,  32  Iowa,  312. 

5  Kinley  v.  Crane,  34  Pa.  St.  146. 

6  Clegg  v.  Fields,  7  Jones  (X.  C.)  Law,  37. 

7  Forbes  v.  Caruthers,  3  Yeates,  527. 

8  Farr  v.  Swan,  2  Pa.  St.  245. 


TESTIMONY    OF    SURVEYORS.  255 

surveyor  is  not  evidence  as  to  the  construction  to  be 
given  to  a  survey;1  that  he  cannot  be  permitted  to 
•iive  his  opinion  as  to  what  are  the  controlling  calls 
of  a  deed,2  the  proper  location  of  a  grant.3  The  title 
to  property  claimed  under  a  recorded  plat  cannot 
be  unsettled  by  the  testimony  of  a  surveyor  who 
has  scaled  the  plat,  that  the  scale  is  incorrect.4  X»r 
is  the  opinion  of  an  examiner  of  titles  admissible  to 
fix  the  location  in  case  of  conflicting  and  doubtful 
lines.5  ; 'Experts  cannot  be  called  to  give  their 
opinions  on  a  subject  of  this  character.  Witnesses 
are  competent  to  show  lines  and  measurements,  but 
the  construction  of  written  instruments  is  for  the 
court  alone."6  It  has  been  held  that  one  who  had 
been  occasionally  employed  as  a  surveyor  in  laying 
out  and  grading,  but  not  in  constructing  highway-, 
was  not  competent  to  testify  as  an  expert  as  to  the 
safety  of  a  highway.7 

A  surveyor,  who  has  testified  to  finding  all  of  the 
corners  pertaining  to  a  given  description  of  land, 
can  be  asked  "if  he  found  them  according  .to  the 
government  survey,"  that  being  a  matter  on  which 
he  is  authorized  to  testify  as  an  expert.8  A  sur- 
veyor testifying  as  an  expert  as  to  his  location  of 
a  certain  corner  has  been  allowed  to  state  whether 
or  not  he  was  satisfied  that  such  corner  was  the 
true  quarter  section  corner,9  and  in  testifying  as  to 

1  Ormsby  v.  Ihmsen,  34  Pa.  St.  462. 

2  Wbittlesey  v.  Kellogg,  28  Mo.  404. 

3  Sehultz  v.  Lindell.  30  Mo.  310;  Blumentbal  v.  Roll,  24  Mu.  113;  Ran- 
dolph v.  Adams,  2  W.  Va.  519. 

4T\vogood  v.  Hoyt,  42  Mich.  609. 

5  Public  Schools  v.  Risley's  Heirs,  40  Mo.  356. 

';  Xorment  v.  Fastnaght,  1  McArthur,  515. 

7  Lincoln  v.  Inhabitants  of  Barre,  5  Gush.  (Mass.)  590. 

-  llockmoth  v.  Des  Grand  Champs,  71  Mich.  520. 

9Toomy  v.  Kay.  62  Wis.  104. 


256  EXPERT    TESTIMONY. 

• 

the  form,  configuration,  or  dimensions  of  land  he 
may  use  a  map  or  diagram  to  aid  in  making  his 
testimony  intelligible,  and  the  map  may  be  sub- 
mitted to  the  jury  to  aid  them  in  understanding 
or  remembering  his  testimony.1  As  to  the  right  to 
make  use  of  maps  and  to  submit  them  to  the  jury, 
reference  is  made  to  the  cases  cited  below.'  The 
cases  show  that  maps  of  a  survey  not  made  in  such 
a  manner  as  to  make  them  admissible  as  evidence 
per  se,  may  nevertheless  be  used  by  the  witness  to  ex- 
plain and  elucidate  his  testimony.3  It  is  well  known 
that  the  declarations  of  persons,  since  deceased,  are 
received  in  evidence  as  to  the  boundaries  of  lands, 
where  from  their  situation  they  had  the  means  of 
knowing  where  the  boundaries  were.  In  a  case  in 
New  Hampshire  it  was  sought  to  extend  the  prin- 
ciple to  the  declarations  made  by  a  surveyor  since 
deceased.  But  the  court  held  that  the  principles 
on  Avhich  such  evidence  was  admitted  would  not 
comprehend  the  declarations  of  a  deceased  expert. 
It  was  not  necessary  that  such  declarations  should 
be  received,  inasmuch  as  other  experts  could  be 
called  whose  testimony  would  be  equally  valuable.* 
The  opinion  that  the  surveyor  had  expressed  was 
that  a  certain  tree  was  not  an  original  monument, 
because  the  marks  on  it  were  not  old  enough. 

§  108.  Testimony  of  Millers  and  Mill-wrigrhts. — 
Millers  and  mill-wrights  are  experts  in  relation  to 
matters  of  technical  skill  in  their  trades. 


1  Humes  v.  Bernstein.  72  Ala.  ">4<;. 

2  Bridges  v.   McClendon,  56  Ala.  327;  Nolin  v.  Farmer,  21  Ala.  66; 
Daily  v.  Fountain,  35  Ala.  26;  Burwell  v.  Sneed,  104  X.  C.  118. 

3Dobson  v.  Whisenhant,  101  X.  C.  045:  state  v.  Whiteacre,   98  X.  C. 
753;  State  v.  Chee  Gong,  17  Oreg.  635. 
*  Wallace  v.  Goodall.  18  X.  H.  43!).  45:5. 


TKSTIMONY    OF    MILLERS    AND    MILL-WRIGHTS.     257 

Persons  who  have  for  years  been  engaged  in  build- 
ing and  carrying  on  mills  are  qualified  to  give  an 
opinion  touching  matters  connected  with  their  ex- 
perience.' The  opinions  of  millers  and  mill-wrights 
,have  ln-en  received  as  to  the  quantity  of  grain  a  cer- 
tain mill  was  capable  of  grinding,  as  to  the  value  of 
the  water  for  milling  purposes,  and  as  to  the  ac- 
curacy of  the  method  of  weighing  and  measuring 
adopted  in  the  mill.2  A  practical  and  professional 
mill-wright,  who  had  taken  the  levels  of  the  water 
and  the  water-wheel,  has  been  permitted  to  testify 
that  if  the  mill  dam  was  a  foot  lower  than  it  was  it 
would  be  impossible  for  the  mill  to  grind  in  a  proper 
manner.3  Upon  an  issue  as  to  the  fitness  of  a  shoal 
for  a  mill  site,  the  opinions  of  mill-wrights  have  been 
received.4  But  it  has  been  held  that  a  witness  may 
testify  to  the  existence  of  a  mill  site  without  being 
an  expert.5  Where  the  identity  of  wheat  was  mate- 
rial, a  miller  and  grower  of  wheat  who  was  familiar 
with  the  different  varieties  was  permitted  to  testify 
that  when  his  wheat  was  cut  early  it  had  a  peculiar 
smell;  that  the  wheat  stolen  had  been  cut  early; 
that  the  grain  found  in  the  possession  of  the  defend- 
ant had  the  same  odor  as  that  in  the  hogshead 
from  which  the  grain  had  been  stolen;  and  therefore 
that  his  opinion  was  that  the  wheat  alleged  to  have 
been  stolen  was  part  of  the  wheat  originally  in  his 
possession.6  But  where  the  question  related  to  the 
freezing  up  of  a  mill,  the  court  excluded  the  opinion 

1  Hammond  v.  Woodm  vn.  41  Me.  177. 

-  Head  v.  Barker,  30  X.  J.  Law,  378;  s.  <•.,  :!'J  H>.  477. 

3  Detweiler  v.  Groff,  10  Pa.  St.  376. 

4  Haas  v.  Choussard,  17  Tex.  592. 

•'•  Claggett  v.  Easterday,  42  Md.  617. 
«  Walker  v.  State,  58  Ala.  393. 

(17) 


258  EXPERT   TESTIMONY. 

of  a  mill-wright  and  a  tender  of  mills,  who  had  an 
experience  of  fourteen  years,    that   a   mill    dam  on 
one  side  of  the  river  being  some  twenty  rods  further 
up  the  stream  than  the  dam  upon  the   other   side, 
would  "make  it  bad   as   regards  anchor  ice,"  and 
"that   the  dams   being   situated    as  they   are,   the 
anchor  ice  would  naturally  fall  into  the  dead  or  still 
water."     The  court  thought  that  it  did  not  appear 
that  his   calling   gave  him  means    not  ordinarily 
possessed  by  other  persons  of  forming   the   opinion 
expressed.1     Where  the  question  was  as  to  the  skill- 
fullness  of  work  done  on  a  mill,  it  was  held  that  the 
opinion  of  a  mill-wright  was  admissible,  but  not  that 
of  a  miller.2     And  in  an  action  for  the  rent  of  a  mill, 
under  a  lease  Avhich  provided  that  the  lessor  should 
put  the  mill  in  good  running  order,  it  was  held  com- 
petent to  inquire  of  a   mill-wright  whether  certain 
additions  and  repairs  were  necessary  to  put  the  mill 
in  such  condition.3     One  who  for  a  number  of  years 
had  been  the  owner  of  mills  has  been  permitted  to 
give  his  opinion  as  to  the  capacity  of   a  person  as  a 
mill-wright.4     A  practical  miller  has  been  permitted 
to  testify  that  a  certain  dam  backed  the  Avater  up  so 
as  to  affect  the  operation  of  a   mill   situated   above 
the  dam  in  the  stream.5     And  it  has  been  held  that 
a  person  who  was  not  an  expert  might   testify  if  he 
knew  the  fact  that  backwater  made   by  the  defend- 
ant diminished   the  power  of  the  plaintiffs  water- 
wheel.6 

1  Woods  v.  Allen,  18  X.  H.  28. 
J  Walker  v.  Fit- Ids,  28  Ga.  237. 

3  Taylor  v.  The  French  Lumbering  Co. ,47  Iowa,  662;    Cooke  v.  En- 
gland, 27  Md.  14. 

*  Doster  v.  Brown,  25  Ga.  24. 

5  Ballv.  Hardesty,  38  Kan.  540. 

6  Williamson  v.  Tingling,  80  Ind.  379. 


TESTIMONY    OF    MACHINISTS.  259 

§    109.       Testimony  of  Machinists. A  machinist  IS 

an  expert  in  matters  of  technical  skill  pertaining 
to  his  trade,  and  may  give  testimony  as  such. 
Practical  experience  in  the  observation  and  use  of  a 
machine  tend  to  give  a  man  that  peculiar  knowledge 
and  special  skill  which  qualify  one  to  testify  as  an 
expert.  A  person  who  has  had  such  experience  has 
been  permitted  to  testify  that  a  crane  or  hoisting 
apparatus  was  of  sufficient  capacity  and  in  repair 
for  the  use  intended.1  So  a  machinist  has  been  held 
competent  to  give  an  opinion  as  an  expert,  in  re- 
lation to  the  construction  of  machinery. '  The 
evidence  of  such  a  person  has  been  received  to  show 
that  a  machine  was  not  constructed  in  a  workman- 
like manner.3  So  where  the  question  involved  re- 
lated to  the  merits  of  various  machines,  as  whether 
one  machine  was  equal  in  all  respects  to  another 
machine  of  different  make,  persons  having  superior 
knowledge  and  experience  with  such  machines  have 
been  permitted  to  express  an  opinion — as  to  whether 
a  certain  cotton  gin  was  equal  in  all  respects  to  the 
best  saw  gin  then  in  use.4  And  a  witness  who  had 
knowledge  of  the  mechanism  and  working  of  knit- 
ting machines,  and  who  was  familiar  with  the  oper- 
ation of  a  needle  called  the  latch  needle,  but  who 
had  no  experience  in  the  use  of  the  spring  needle, 
and  did  not  know  of  its  operation,  has  been  per- 
mitted to  show  to  the  jury,  the  facility  and  perfec- 
tion of  operation  of  the  latch  needle  to  testify  to  its 
merits,  and  to  express  an  opinion  that  its  use  could 


1  Bemis  v.  Central  Vermont  R.  R.  Co.,  58  Vt.  636. 

2  Sheldon  v.  Booth,  50  Iowa,  209. 

3  Curtis  v.  Gaiio,  26  N.  Y.  426. 

«  Seattergood  v.  Wood,  79  X.  Y.  263. 


260  EXPERT    TESTIMONY. 

not  be  superseded  by  the  spring  needle,  giving  his 
reasons  therefor.1  It  is  not  necessary  in  all  cases 
that  the  witness  should  be  a  machinist  by  trade;  if 
he  has  had  practical  experience  in  operating  a  partic- 
ular machine,  or  machines  of  a  similar  character, 
he  is  competent  to  express  an  opinion  as  to  the  kind 
of  work  such  machine  can  perform.2  Where  the 
question  was  as  to  the  proper  mode  of  testing  the 
strength  of  leathern  fire  hose,  a  manufacturer  of 
steam  gauges,  who  had  repeatedly  tested  hose,  was 
held  competent  to  express  an  opinion,  and  to  state 
what  constituted  "a  fair  and  satisfactory  test, "  such 
as  was  provided  for  by  the  contract.8  And  where 
an  issue  involved  the  question  of  how  much  work  a 
machine  could  do,  a  person  acquainted  writh  the 
machine  and  its  construction  was  allowed  to  express 
an  opinion.*  One  employed  in  a  railroad  machine 
shop  as  a  master  mechanic,  has  been  permitted  to 
express  an  opinion  that  a  certain  spark-arrester  was 
the  best  known. s  So  machinists  and  brass  finishers 
of  large  experience  have  been  allowed  to  state  that, 
from  common  observation  and  without  close  inspec- 
tion, it  could  not  be  told  whether  certain  brass  coup- 
lings were  perfect  or  imperfect,  and  whether  they 
were  of  any  use  for  the  purpose  for  which  they  were 
intended.6  A  person  who  had  been  for  years  a 
mechanical  engineer  and  a  builder  of  machines,  and 
had  seen  the  machines  in  question  in  operation,  has 
been  allowed  to  testify  that  it  was  not  safe  for  the 


1  .lames  v.  Hodsdeu,  47  Vt.  127. 
2. Sheldon  v.  Booth.  50  Iowa,  209. 

3  Chicago  v.  Greer,  9  Wall.  726,  733. 

4  Burns  v.  Welch,  S  Yerg.  (Tenn.)  117. 

5  Great  Western  K.  K.  Co.  v.  Haworth,  3»  111.  349. 
6Jupitz  v.  People,  34  111.  516,  521. 


TESTIMONY    OF    MECHANICS.  261 

operative  to  put  the  hand  on  the  iron  plate  with  the 
cloth  traveling  at  the  rate  of  a  foot  a  second,  the 
machine  being  made  to  shear  the  nap  from  the  cloth 
by  revolving  knives,  but  he  was  not  permited  to 
state  whether  the  danger  of  the  operative's  hand 
being  drawn  under  the  knives  if  placed  on  the 
cloth  would  be  obvious  to  an  inexperienced  oper- 
ative.1 The  question  was  within  the  common 
knowledge  of  the  jury.  A  machinist  has  been  al- 
lowed to  testify  as  an  expert,  whether  the  defective 
work  and  condition  of  a  steam  saw  mill  examined 
by  him  was  due  to  defective  construction,  or  to 
want  of  skill  in  the  management  of  it.2 

§  110.  Testimony  of  Mechanics.  —  A  mechanic 
may  testify  as  an  expert  in  matters  of  technical  skill 
pertaining  to  his  trade.  Thus,  witnesses  skilled  in 
wood-work  have  been  allowed  to  testify  that  a  panel 
had  been  cut  out  with  a  knife,  and  that  the  blade 
of  defendant's  knife  exactly  fitted  the  place  where 
the  panel  had  been  pierced — that  it  had  been  cut 
from  the  outside  by  one  skilled  in  the  use  of  tools, 
and  was  evidently  taken  out  by  one  who  understood 
the  construction  of  the  door.3  A  mechanic  has  been 
permitted  to  testify  as  to  the  injury  done  to  a  house 
by  defects  in  the  construction  of  the  cellar  under  it.* 
So  where  a  contract  for  the  construction  of  a  build- 
ing stipulated  that  it  should  have  a  wood  cornice 
with  brackets,  but  failed  to  specify  whether  the  cor- 
nice should  be  placed  on  the  wall  above  the  upper 
joist  or  below  that  point,  or  what  width  of  cornice 

or  length  of  bracket  there  should  be,  it  was  held  com- 

i 

1  Gilbert  v.  Guild,  144  Mass.  601. 

2  Chandler  v.  Thompson,  30  Fed.  R.  38. 

3  State  v.  Baldwin,  36  Kan.  _>. 

4  Moulton  v.  McOwen,  103  Mass.  587. 


262  EXPERT   TESTIMONY. 

petent  to  admit  the  testimony  of  house  builders  and 
mechanics  as  to  these  matters,  and  to  show  by  them, 
that  in  order  to  properly  place  a  cornice  of  a  proper 
width  on  the  building  according  to  contract,  it  was 
necessary  that  the  walls  should  have  been  built  up 
to  the  point  they  were  built  to,  and  for  which  the  con- 
tractor and  builder  claimed  extra  compensation.1 
And  in  an  action  for  labor  and  materials  in  erecting 
a  house,  the  testimony  of  master  builders  who  had 
examined  the  building  and  made  an  estimate  of  the 
cost,  has  been  held  admissible  for  the  purpose  of  as- 
certaining the  amount  of  the  damages.2  Prac- 
tical mechanics,  who  showed  themselves  fully 
acquainted  with  the  custom  as  to  measuring,  have 
been  allowed  to  testify  as  to  the  measurement  of 
masonry,3  and  as  to  the  proper  mode  of  measuring 
the  angles  of  an  octagonal  cellar.4  The  opinion  of 
one  having  a  long  and  thorough  acquaintance  with 
the  construction  of  berths  on  steamboats,  has  been 
received  as  to  whether  the  berths  on  a  certain  steam- 
boat were  constructed  in  the  manner  usual  upon  the 
best  boats  built  at  the  time  of  its  construction.5 
When  an  application  for  insurance  contained  a  war- 
ranty that  the  buildings  insured  were  brick,  and  in 
an  action  on  the  warranty  it  was  contended  that  the 

«, 

buildings  were  partly  brick  and  partly  wood,  it  was 
held  that  an  experienced  builder  might  be  asked 
whether  such  buildings  would  be  properly  denom- 
inated "  brick  "  buildings.6  Builders  and  contract- 

1  Haver  v.  Tenney,  36  Iowa,  80. 

2  Tebbetts  v.  Haskins,  1C  Me.  283. 

3  Shulte  v.  Hennessey^  40  Iowa,  352. 

4  Ford  v.  Tirrell,  9  Gray  (Mass.).  401. 

5  Tinney  v.  N.  J.  Steamboat  Co.,  12  Abb.  Pr.  (N.  S.)  1. 

6  Mead  v.  Xorthwestern  Ins.  Co.,  3  Selden  (X.  Y.),  530;  s.  c.,  3  Ben- 
nett's Fire  Ins.  Co.  Cas.  483. 


TESTIMONY    OF     FARMERS    AND    GARDENERS.       263 

ors  have  been  held  equally  competent  with  archi- 
tects, to  show  that  the  employment  of  an  architect 
to  make  plans  and  designs  for  a  building,  carried 
with  it  an  employment  to  superintend  its  construc- 
tion.1 

A  cabinet  maker  of  more  than  eight  years'  expe- 
rience, and  who  performed  part  of  the  work  in  ques- 
tion has  been  allowed  to  answer  as  to  whether  the 
work  was  a  good  job,  and  whether  it  was  well  done.2 

§  111.  Testimony  of  Masons. — A  mason  is  an  ex- 
pert in  matters  of  technical  skill  pertaining  to  his 
trade,  and  is  allowed  to  testify  as  such.  Thus,  a 
practical  brick  mason,  w<ho  had  aided  in  the  con- 
struction of  the  plaintiff's  wall,  has  been  allowed  to 
express  an  opinion  as  an  expert,  as  to  whether  the 
quantity  of  rain  which  fell  on  the  premises  within 
the  wall  wras  sufficient  to  wash  it  down.3  So  the  opin- 
ions of  masons  have  been  received  as  to  the  length 
of  time  required  to  dry  the  wralls  of  a  house  so  as  to 
make  it  fit  for  habitation/  But  it  has  been  held 
that  the  effect  of  water  in  disintegrating  the  mortar 
of  a  wall  is  not  a  matter  of  science,  and  that  other 
persons  than  masons,  who  have  had  an  occasion  to 
observe  it,  are  competent  to  express  an  opinion  con- 
cerning it.5  And  experts  have  been  allowed  to  state 
how  much  sand  was  used  with  a  cask  of  lime  in 
making  certain  mortar.6 

§  112.  Testimony  of  Farmers  and  Gardeners. — 
The  opinions  of  farmers  and  gardeners  are  received 


1  Wilson  v.  Bauman.  80  111.  493. 

2  Ward  v.  Kilpatrick,  85  X.  Y.  413. 

3  Montgomery  v.  Gilmer,  33  Ala.  116. 

*  Smith  v.  Gugerty,  4  Barb.  (N.  Y.)  619. 

5  Underwood  v.  Waldron,  33  Mich.  232. 

6  Miller  v.  Shay,  142  Mass.  598. 


264 


EXPERT   TESTIMONY. 


in  evidence  on  matters  peculiarly  within  the  knowl- 
edge of  persons  following  their  occupation.  Thus, 
a  witness  who  had  used  guano  on  all  kinds  of  gar- 
den and  field  plants  and  crops,  and  who  had  closely 
and  critically  watched  its  effects,  has  been  held  com- 
petent to  testify  as  to  the  proper  method  of  using  such 
fertilizers,  and  as  to  what  would  prevent  them  from 
acting  beneficially.1  A  gardener  and  a  farmer,  who 
had  attended  to  and  practiced  the  draining  of  lands 
for  the  purpose  of  making  them  productive,  have 
been  held  competent  to  give  to  their  opinion  as 
experts,  whether  a  certain  piece  of  land,  examined  by 
and  known  to  them,  required  draining  to  put  it  in 
condition  for  cropping.2  The  opinion  of  a  gardener 
has  been  received  as  to  the  damage  done  to  a  gar- 
den and  nursery  by  the  smoke  from  a  brick  kiln.3  * 
The  opinion  of  a  farmer  that  a  wagon  loaded  with 
hay  in  a  certain  manner  was  not  safe  to  ride  upon 
over  ordinary  roads,  has  been  held  inadmissible. 
The  jury  were  competent  to  determine  the  question 
from  the  facts  stated.*  But  the  opinions  of  farmers 
have  been  received  as  to  how  many  bushels  of  corn 
there  would  have  been  011  certain  land  on  which 
cattle  had  trespassed,  had  it  not  been  for  such  tres- 
pass.5 So  it  has  been  held  that  a  farmer  could  be 
asked,  "  taking  that  hay  as  it  stood  then,  what  would 
it  yield  to  the  acre?"  "  A  person,"  said  the  court, 
"  conversant  with  the  growth  of  grass,  and  accus- 
tomed to  compare  its  appearance  in  different  stages 

1  Young  v.  O'Xeal,  57  Ala.  566. 

2  Buffum  v.  Harris,  5  R.  I.  250.     And  see  pp.  15,  16. 
8  Vandine  v.  Burpee,  13  Met.  (Mass.)  288. 

4  Bills  v.  City  of  Ottawa,  35  Iowa,  109. 

8  Sickles  v.  Gould,  51  How.  Pr.  (N.  Y.)  25;  Seamans  v.  Smith,  46  Barb. 
(N.  Y.I  320;  Keith  v.  Tilford,  12  Neb.  271,  275. 


TESTIMONY    OF    FARMERS    AND     GARDENERS.       265 

of  such  growth  with  its  ultimate  yield  to  the  acre, 
may  well  be  said  to  have  such  knowledge  of  that 
subject  as  to  make  him  competent  to  testify  how- 
much,  in  his  opinion,  a  given  piece  examined  by 
him,  will  yield  per  acre.  *  *  *  The  principle 
is  the  same  as  that  on  which  the  opinion  of  an  ex- 
pert is  received.  The  farmer,  acquainted  with  the 
subject-matter  of  such  an  inquiry  as  this  under  con- 
sideration is  an  expert,  and  unless  the  witness  has 
the  peculiar  knowledge  which  constitutes  him  an 
expert  his  opinions  would  be  excluded."1  Farmers 
and  dairymen  have  been  held  competent  to  express 
an  opinion  as  to  the  adulteration  of  milk.2  A  farmer 
experienced  in  clearing  up  land  has  been  allowed  in 
New  York  to  testify  whether  a  fire  was  set  on  land 
at  a  proper  time.3  But  in  Vermont  the  court  has 
held  that  the  opinions  of  farmers  who  saw  the  fire 
set,  and  testified  to  its  position,  and  to  the  force  and 
direction  of  the  wind,  were  inadmissible  on  the  ques- 
tion whether  the  day  on  which  the  fire  was  set  was 
a  suitable  and  safe  day.4  It  has  been  held  in  Min- 
nesota that  the  opinion  of  a  farmer  experienced  in 
clearing  land  was  admissible,  where  the  question 
was  as  to  how  many  feet  in  width  it  would  be  nec- 
essary to  plow  to  stop  a  fire  on  stubble  land.5  It 
has  been  held  in  Massachusetts  that  the  opinion  of 
a  farmer  was  inadmissible  on  the  question  whether 
there  was  a  liability  that  a  fire  set  under  certain 
circumstances  wrould  have  spread  to  adjoining  land.* 

1  Phillips  v.  Terry,  3  Abb.  X.  Y.  Decis.  607,  609. 

2  Lane  v.  Wilcox,  55  Barb.  (X.  Y.)  615. 

3  Ferguson  v.  Hubbell,  26  Hun  (X.  Y.),  250.    And  also  see  Wells  v. 
Eastman,  61  X.  H.  507. 

4  Fraser  v.  Tupper,  29  Vt.  409. 
Kipner  v.  Biehl,  28  Minn.  139. 

6  Higgins  v.  Dewey,  107  Mass.  494. 


266  EXPERT   TESTIMONY. 

One  who  had  experience  as  an  overseer  of  a  planta- 
tion for  some  five  or  six  years,  has  been  held  quali- 
fied as  an  expert  to  express  an  opinion  that  the  over- 
seer of  another  plantation  had  ' '  managed  pretty 
well."  And  one  who  had  served  as  overseer  of  a 
plantation  for  sixteen  months,  has  been  held  c.om- 
petent  to  testify  as  to  the  amount  of  food  which 
was  sufficient  for  a  plantation  slave.2 

The  opinion  of  a  farmer  is  admissible  as  to  the 
quality  of  the  soil  of  a  farm,3  and  as  to  whether  a 
cow  was  diseased.*  Farmers,  who  for  a  number  of 
years  had  the  care,  training  and  common  use  of 
horses,  have  been  allowed  without  objection  to  state 
that  from  their  own  knowledge  of  horses,  a  horse 
which  had  been  frightened  and  had  run,  and  had 
not  run  again  for  a  period  of  more  than  a  year  and 
a  half,  was  not  any  more  likely  to  run  than  if  he 
had  not  run  before.5  While  no  objection  was  raised 
as  to  the  qualifications  of  the  witness  in  the  above 
case,  it  was  objected  that  the  question  was  not  one 
of  skill,  science,  or  peculiar  knowledge,  but  the 
court  ruled  that  it  was  not  a  matter  of  common 
knowledge,  and  that  the  testimony  was  properly  re- 
ceived. 

A  farmer  who  raises  horses  for  the  market  has  been 
held  competent  to  testify  as  to  the  value  of  a  thor- 
oughbred stallion  of  which  he  had  knowledge.6 

§  113.  Testimony  of  Cattlemen. — We  have  seen  in 
preceding  section  that  the  opinions  of  farmers  have 

1  Spiva  v.  Stapleton,  38  Ala.  171. 

8  Cheek  v.  State,  38  Ala.  227. 

3  Sarle  v.  Arnold,  7  R.  I.  582. 

«  Slater  v.  Wilcox,  57  Barb.  (N.  Y.)  604.    See  chapter  VIII. 

8  Donnelly  v.  Fitch,  136  Mass.  558. 

6  Gere  v.  Council  Bluffs  Ins.  Co.,  67  Iowa,  272. 


TESTIMONY    OF    CATTLEMEN.  267 

been  received  on  questions  relating  to  horses  and  cat- 
tle. It  remains  to  consider  like  cases  in  which  the 
opinions  of  cattlemen  have  been  received  in  evidence. 
The  opinions  of  men  engaged  in  raising  stock,  and 
accustomed  to  riding  through  the  same  range  in  quest 
of  stock,  have  been  received  as  to  the  number  of  stock 
of  a  particular  brand  running  in  the  range.1  And  in  a 
recent  case  in  Texas  it  was  held  that  an  expert  could 
testify  as  to  the  topography  of  the  country,  the  num- 
ber of  cattle  frequenting  it,  and  whether  they  were 
wild  or  gentle,  but  that  he  could  not  testify  as  to  the 
length  of  time  which  would  be  required  to  gather  a 
•certain  number  of  cattle  within  the  limits  of  a  given 
range.2  The  opinions  of  experienced  graziers  have 
been  received  as  to  the  condition  of  cattle,  and  as 
to  the  causes  which  affect  their  health  and  weight.' 
Persons  experienced  in  weighing  cattle  are  permitted 
to  express  an  opinion  as  to  the  weight  of  cattle.4  A 
stock  raiser  has  been  allowed  to  testify  as  to  the 
damage  done  to  cattle  by  falling  through  a  wharf.5 
A  shepherd  has  been  permitted  to  give  an  opinion 
as  to  the  age  of  a  sheep,  judging  from  its  teeth,*  and 
so  in  respect  to  the  age  of  a  horse,  or  other  animal, 
experienced  persons  will  be  permitted  to  express  an 
opinion  as  to  his  age,  from  an  examination  of  his 
mouth  and  the  observation  of  other  signs.7  A  cat- 
tle driver  has  been  allowed  to  answer  the  question, 
' '  How  man}'  hands  would  be  necessary  to  drive  two 

1  Albright  v.  Corley,  40  Tex.  105. 

2  Tyler  v.  State,  11  Tex.  Ct.  of  App.  388. 

3  Baltimore,  etc.  R.  R.  Co.  v.  Thompson,  10  Md.  76. 

*  McCormic  v.  Hamilton,  23  Gratt.  (Va.)  561 ;  Carpenter  v.  Wait,  11 
Cush.  (Mass.)  257;  Filley  v.  Billings,  42  X.  W.Rep.  713. 

5  Polk  v.  Coffin,  9  Cal.  56. 

6  Clague  v.  Hodgson,  16  Minn.  329. 

7  See  Moreland  v.  Mitchell  County,  40  Iowa,  401. 


268  EXPERT   TESTIMONY. 

hundred  mules,  supposing  they  were  broke  mules 
and  driven  under  the  circumstances  detailed  by  the 
witnesses  in  this  case?" 

When  the  question  was  as  to  the  overloading  a 
car-load  of  hogs,  a  witness  who  had  been  in  the 
habit  of  shipping  hogs  in  cars  for  many  years,  was 
allowed  to  state  that  hogs  of  the  number  and  weight 
of  those  in  controversy  could  not  be  safely  shipped 
in  one  car  in  hot  weather.2 

§  114.  Testimony  of  Painters  and  Photographers. 
— The  opinion  of  an  artist  in  painting  is  competent 
evidence  as  to  the  genuineness  of  a  painting.3  An 
ambrotypist  and  daguerreotypist  has  been  held  com- 
petent to  express  an  opinion  as  to  whether  photo- 
graphs were  well  executed.4  And  an  expert  in  pho- 
tography has  been  allowed  to  testify,  from  what  he 
knew  and  saw  of  a  photograph  printer's  work  and 
capacity,  how  many  photographic  pictures  such  per- 
son could  paint  in  the  course  of  a  month.5  In  the 
same  case  it  was  announced,  that  although  experts 
might  be  alone  competent  to  testify  whether  a  pho- 
tograph was  well  executed,  yet  it  required  no  special 
skill  in  a  knowledge  of  the  photographic  art  to  de- 
termine whether  the  picture  resembled  the  original, 
and  any  person  for  whom  the  picture  was  taken 
could  testify  that  it  was  a  good  likeness. 

§  115.  Testimony  of  Lumbermen. — One  employed 
in  getting  out  logs  has  been  permitted  to  testify  as 
an  expert,  whether  a  person  with  the  force  of  men 
he  had  employed  could  have  continued  to  deliver  a 

1  North  Missouri  R.  R.  Co.  Akers,  4  Kan.  453. 

8  Wabash,  etc.  R.  R.  Co.,  v.  Pratt,  15  Bradw.  (111.)  177. 

3  Folkes  v.  Chadd.  4Dougl.  157. 

*  Barnes  v.  Ingalls,  39  Ala.  193. 

5  Barnes  v.  Ingalls,  39  Ala.  193. 


TESTIMONY    OF    LUMBERMEN.  269 

certain  amount  of  logs  per  day.1  One  who  had  expe- 
rience in  floating  logs  in  a  certain  stream  has  been 
allowed  to  express  an  opinion  as  to  the  proper  man- 
ner of  floating  logs  through  a  dam  and  flume.  "The 
running  of  the  logs  in  that  stream,  and  through  that 
bulk-head,  was  not  a  matter  of  common  knowledge, 
nor  of  adequate  common  judgment  upon  the  facts 
shown  by  the  other  evidence.  The  experience  and 
observation  of  the  plaintiff  gave  him  the  grounds 
and  faculty  of  an  opinion  peculiar  to  himself,  and 
not  common  to  men  who  had  no  such  experience  or 
observation.  In  a  substantial  sense  he  may  be  re- 
garded as  an  expert  having  peculiar  knowledge  and 
skill,  which  renders  his  opinion  worthy  of  consider- 
ation as  the  ground  of  judgment  and  opinion  in 
others  who  have  not  such  knowledge  and  skill." 
The  opinion  of  a  lumber  dealer  has  been  received 
as  to  the  quality  of  certain  lumber.3  And  one  en- 
gaged in  lumbering  has  been  permitted  to  state 
whether  a  raft  was  properly  moored.*  Where  the 
question  was  whether  certain  lumber  had  been  neg- 
ligently piled,  it  was  decided  that  one  experienced 
in  such  work  could  not  testify  how  he  would  have 
piled  it  in  a  certain  case,  nor  how,  in  his  opinion, 
it  might  have  been  piled.  The  piling  of  lumber 
was  not  thought,  in  any  proper  sense,  to  involve  the 
exercise  of  technical  knowledge  or  skill.5  A  person 
experienced  in  the  sawing  of  lumber  has  been  per- 
mitted to  testify  that  at  the  time  of  an  accident  the 


1  Salvo  v.  Duncan,  49  Wis.  157. 

2  Dean  v.  McLean,  48  Vt.  412. 

;  Moore  v.  Lea's  Admr.,  32  Ala.  37.").    See  pp.  15,  10. 

<  Hay  ward  v.  Knapp,  23  Minn.  430. 

•>  Baldwin  v.  St.  Louis,  etc.  R.  R.  Co.,  66  Iowa,  37. 


270  EXPERT   TESTIMONY. 

log  being  sawed  did  not  pinch  the  saws,  and  that 
the  machinery  was  being  operated  in  the  usual  man- 
ner.1 

§  116.  Testimony  of  Experts  in  Patent,  Trade- 
Mark  and  Copyright  Cases. — 111  actions  for  the  in- 
fringement of  patent  rights,  the  testimony  of  ex- 
perts is  admissible  for  the  purpose  of  explaining  the 
drawings,  models  and  machines  exhibited,  as  well 
as  for  the  purpose  of  explaining  their  operation,  and 
pointing  out  the  resemblance  or  difference  in  the 
mechanical  devices  involved  in  their  construction.2 
But  the  court  cannot  be  compelled  to  receive  the 
evidence  of  experts  as  to  how  a  patent  ought  to 
be  construed,  and  whether  it  has  been  violated.3 
Neither  will  an  expert  be  allowed  to  testify  that, 
from  investigations  made  by  him  in  scientific  works, 
he  has  ascertained  that  an  invention  patented  long 
before,  was  well  known  prior  to  the  application  for 
letters  patent  thereon.  "The  question,"  said  the 
court,  "proposed  to  the  defendant,  as  an  expert, 
sought  to  establish  an  historical  fact,  under  the  guise 
of  a  scientific  opinion.  It  was  properly  excluded/' 
In  actions  for  the  infringement  of  trade-marks, 
the  probability  of  deception  is  generally  shown  by 
resemblance  and  by  the  opinions  of  experts.5  And 
in  the  case  of  an  alleged  violation  of  a  cop}' right,  it 
has  been  held  that  experts  could  testify,  and  state 
the  results  of  comparisons  made  by  them  of  the  notes 
and  citations  of  authorities  contained  in  the  two  law 

1  Sanborn  v.  Madeira  Flume  and  Trading  Co..  70  Cal.  261. 

2  Abbott's  Trial  Ev.  760;  Corning  v.  Burden,  12  How.  252;  Hudson  v. 
Draper,   5  Fisher  Pat.   Gas.  256,  259;  s.  c.,  4  Clifford,  181;  Gaboon  v. 
Ring,  1  Clifford,  592;  Winans  v.  X.  Y.  A:  Erie  R.  R.  Co.,  21  How.  88. 

3  Waterbury  Brass  Co.  v.  N.  Y.,  etc.  Co..  3  Fisher  Pat.  Gas.  43,  54. 
<  McMahon  v.  Tyng,  14  Allen,  167. 

5  Abbott's  Trial  Ev.  752. 


books  in  question,  together  with  their  opinions  as  to 
whether  the  several  notes  and  citations  were  of  the 
same  character.1 

§  117.  Testimony  of  Business  Men  as  to  Usage. — 
On  a  question  of  usage  in  a  particular  trade  or  busi- 
ness, the  opinions  of  persons  experienced  therein 
will  be  received  in  evidence.2  "Usage  is  proved," 
says  the  court  in  Massachusetts,  "by  witnesses  tes- 
tifying of  its  existence  and  uniformity  from  their 
knowledge,  obtained  by  observation  of  what  is  prac- 
ticed by  themselves  and  others  in  the  trade  to  which 
it  relates.  But  their  conclusions  or  inferences  as  to 
its  effect,  either  upon  the  contract  or  the  legal  title, 
or  rights  of  parties,  are  not  competent  to  show  the 
character  or  force  of  the  usage. ' '  That  the  opinions 
of  experts,  in  a  particular  business  as  to  the  existence 
of  a  usage  in  that  particular  business,  are  inadmissi- 
ble when  the  effect  would  be  to  contradict  the  ex- 
press terms  of  the  contract,  is  well  settled  upon  the 
authorities.*  Neither  can  such  evidence  be  received 


1  Lawrence  v.  Dana,  4  Clifford,  1,  72. 

2  Wilson  v.  Bauman,  80  111.  494;   Kershaw  v.  Wright,  115  Mass.  361; 
The  City  of  AVashingtou,  92  U.  S.  31. 

3  Haskins  v.  Warren,  115  Mass.  514,  535.    And  see  Barnes  v.  Ingalls, 
39  Ala.  193. 

<  Malcolmson  v.  Morton,  11  Irish  Law  R.  230  (Q.  B.) ;  Peters  v. 
Stavely,  15  L.  T.  (X.  S.)  151;  Reading  v.  Menham,  1  Moo.  &  R.  234; 
Savings  Bank  v.  Ward,  100  U.  S.  195,  206;  Partridge  v.  Insurance  Co., 
15  Wall.  375;  Thompson  v.  Riggs,  5  Wall.  663,679;  Snelling  v.  Hall,  107 
Mass.  134;  Brown  v.  Foster,  113  Mass.  136;  Dickinson  v.  Gay,  7  Allen 
(Mass.),  29,  31;  Randall  v.  Rotch,  12  Pick.  (Mass.)  107;  Barlow  v.  Lam- 
bert, 28  Ala.  704 ;  Polhemus  v.  Heinman,  50  Cai.  438 ;  Bank  of  Commerce 
v.  Bissell,  72  X.  Y.  615;  Collender  v.  Dinsmore,  55  X.  Y.  200;  Frith  v. 
Barker,  2  Johns.  (X.  Y.)  334  Corbett  v.  Underwood,  83  111.324;  Wilson 
v.  Bauman,  80  111.  493 ;  Dixon  v.  Dunham,  14  111.  324 ;  Stultz  v.  Locke,  47 
Md.  562,  568;  Bodfish  v.  Fox,  23  Me.  90;  Exchange  Bank  v.  Coleman, 
1  W.  Va.  69;  Randolph  v.  Holden,  44  Iowa,  327;  Erwin  v.  Clark,  13 
Mich.  10,  18;  Bedford  v.  Flowers,  7  Humph.  (Tenn.)  232;  Atwater  v. 
Clancy,  107  Mass.  369. 


EXPERT   TESTIMONY. 

when  it  would  result  in  violating  a  positive  require- 
ment of  law,  or  some  principle  of  public  policy.1  It 
is  not  to  be  supposed,  however,  that  a  custom  or 
usage  cannot  be  shown  in  any  case,  if  it  is  simply 
different  in  its  effect  from  some  general  principle  of 
law.  To  have  this  effect,  it  must  conflict  with  some 
rule  of  public  policy,  or  be  unjust  and  oppressive  in 
Its  character.2 

It  is  held  that  a  witness  is  competent  to  testify  as 
to  usage  whose  only  knowledge  of  it  is  derived  from 
his  own  business,  if  that  has  been  sufficiently  ex- 
tensive and  long  continued.3  The  testimony  of 
those  engaged  in  a  particular  business,  that  they 
never  heard  of  such  a  usage,  is  admissible.4  On  the 
issue  whether  an  alleged  commercial  usage  exists,  a 
witness  may  be  asked  to  describe  how,  under  the 
usages  in  force,  a  transaction  like  the  one  in  question 
would  be  conducted  by  all  the  parties  thereto,  from 
its  inception  to  its  conclusion.5  It  has  been  held  in 
England  that  a  London  stack  broker  is  a  competent 
witness  as  to  the  course  of  business  of  London 
bankers.6  And  it  is  to  be  observed  that  a  person 
may  be  competent  to  testify  as  to  the  usage  which 
prevails  in  a  certain  business,  without  himself  being 

1  Barlow  v.  Lambert,28  Ala.  704. 710 ;  Antomarclii  v.  Russell, 63  Ala.  356 ; 
Wilson  v.  Bauman,  80  111.  493,  495;  Bissell  v.  Ryan,  '23  111.  570;  Homer 
v.  Dorr,  10  Mass.  26;  Reed  v.  Richardson,  98  Mass.  216;  Lockhart  v. 
Dewees,  1  Tex.  535;  Jackson  v.  Beling,  22  La.  Ann.  377;  Barnard  v. 
Kellogg,  10  Wall.  383;  Brown  v.  Jackson,  2  Wash.  C.  C.  24;  South- 
western Freight,  etc.  Co.  v.  Standard,  44  Mo.  71 ;  Raisin  v.  Clark,  41  Md. 
158;  Minnesota  Central  R.  R.  Co.  v.  Morgan,  52  Barb.  (N.  Y.)  217,  221 ; 
Inglebright  v.  Hammond,  19  Ohio,  337. 

*  See  Lawson  on  Usages  and  Customs,  Chapter  V,  §§  225,  248. 
3  Hamilton  v.  Xickerson,  13  Allen  (Mass.),  351. 

*  Evausville,  etc.  R.  R.  Co.  v.  Young,  28  Ind.  51G. 

5  Kirsbaw  v.  Wright,  115  Ma&s.  361. 

6  Adams  v.  Peters,  2  Car.  &  Kir.  (61  E.  C.  L.  )  722. 


TECHNICAL  TERMS  AND   fXTSUAL   WORDS.          '2~'\ 

engaged  in  that  business.  So  that  when  the  ques- 
tion was  as  to  the  custom  of  the  New  York  banks  in 
paying  the  checks  of  dealers,  it  was  held  proper  to 
call  as  witnesses  persons  who  were  not  employed  in 
banks.  "Although  not  employed  in  banking  busi- 
ness, the  witnesses  were  dealers  with  the  banks,  and 
had  knowledge  of  the  ordinary  course  of  dealing 
with  them.  There  is  no  necessity  for  showing  a 
man  to  be  an  expert  in  banking  in  order  to  prove  a 
usage.  He  should  know  what  the  usage  is,  and 
then  he  is  competent  to  testify  whether  he  be  a 
banker,  or  employed  in  a  bank,  or  a  dealer  with 
banks.  There  is  no  reason  why  a  dealer  should  not 
have  as  much  knowledge  on  such  a  subject  as  a  per- 
son employed  in  a  bank.'1 

§  118.  Testimony  as  to  Technical  Terms  and  Un- 
usual Words. — It  is  laid  down  as  clearly  within  the 
province  of  the  court  to  define  technical  words  to 
the  jury.2  The  courts  take  judicial  notice  of  the 
meaning  of  words  and  idioms  in  the  vernacular  of 
the  language.3  And  where  foreign  words  have  been 
so  far  Anglicized  by  common  use  as  to  have  become 
substantially  a  part  of  our  language,  it  is  within  the 
province  of  the  court  to  define  them  to  the  jury.* 
Instances  of  such  words  are  "habeas  corpus,"  "bona 
fide, ' '  ' 'prima facie, ' '  "a  fortiori, ' '  * 'flayrante  delicto.' ' 
The  general  rule  undoubtedly  is  that  the  meaning 
of  an  English  word,  not  a  technical  term,  cannot  be 


1  Griffin  v.  Rice,  1  Hilton  (X.  Y.),  184. 
-  Thompson's  Charging  the  Jury,  §  18. 

3  Greenl.  Evidence,  §  5. 

4  Townshend  on  Slander  &  Libel,  160,  note  2;  Homer  v.  Taunton,  5  H. 
&"X.  661,  667;  Barnett  v.  Allen,  3  H.  &  N.  376;  Hoare  v.  Silverlock,  12 
Ad.  &  El.  (X.  S.)  624;    Gibson  v.   Cincinnati  Enquirer,  5  Cent.  L.  J.  380 
(U.  S.  Circuit  Ct.,  Southern  District  of  Ohio). 

(18) 


274  EXPERT   TESTIMONY. 

made  known  to  the  jury  by  an  examination  of  wit- 
nesses. It  has,  therefore,  been  held  error  in  an 
action  for  libel  to  allow  a  physician  to  testify  as  to 
the  meaning  of  the  word  "malpractice."  But  this 
rule  does  not  apply  ''where  a  known  English  word 
or  phrase  has  acquired  a  local  meaning  different 
from  its  ordinary  acceptation,  nor  where  it  has  ac- 
quired a  peculiar  meaning  in  a  particular  science, 
art  or  trade,  or  among  a  particular  sect,  and  where 
it  seems  to  have  been  used  in  such  local  or  peculiar 
sense."  Hence,  it  may  be  laid  down  that  when  a 
new  or  unusual  word  is  used  in  a  contract,  or  when 
a  word  is  used  in  a  technical  or  peculiar  sense,  as  ap- 
plicable to  any  trade  or  business,  or  to  any  partic- 
ular class  of  people,  it  is  proper  to  receive  the  testi- 
mony of  witnesses  having  special  knowledge  of  such 
words  as  to  the  meaning  attached  to  them.3  The 
rule  has  been  well  stated  by  the  Supreme  Court  of 
Massachusetts  in  the  following  language  :  ''The 
general  rule  of  law  is,  that  the  construction  of  every 
written  instrument  is  matter  of  law,  and,  as  a  neces- 


1  Rodgers  v.  Kline,  56  Miss.  818.     See,  too,  Haley  v.  State,  63  Ala.  89; 
Campbell  v.  Russell,  9  Iowa,  337. 

2  Rodgers  v.  Kline,  supra. 

8  Eaton  v.  Smith,  20  Pick.  (Mass.)  156;  Daniels  v.  Hudson  River  Fire 
Ins.  Co.,  12  Gush.  (Mass.)  416,  429;  Collender  v.  Dinsmore,  55  N.  Y. 
200;  Sturm  v.  Williams,  38  X.  Y.Superior  Ct.  325;  Hearn  v.  Xew  En- 
gland Mutual  Ins.  Co.,  3  Clifford  C.  C.  318;  Prather  v.  Ross,  17  Ind.495; 
Silverthorne  v.  Fowle,  4  Jones  (X.  C.)  Law,  362;  James  v.  Bostwick, 
Wright  (Ohio),  142;  Harris  v.  Rathbuo,  2  Abbott  (Ct.  of  App.  Dec-is.), 
328;  Williams  v.  Poppleton,  3  Oreg.  139;  Pollen  v.  Le  Roy,  10  Bos. 
(N.  Y.)  38;  First  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co..  28  X.  Y. 
153,  155;  Reynolds  v.  Jourdan,  5  Cal.  108;  Reamer  v.  Nesmith,  34  Cal. 
627;  Callahan  v.  Stanley,  57  Cal.  479;  Evans  v.  Commercial  Ins.  Co.,  G 
R.  I.  47;  Burnham  v.  Boston  Marine  Ins.  Co.,  139  Mass.  399;  Beasoi>v. 
Kurz,  66  Wis.  448;  Longv.  Davidson,  101  N.  C.  175;  Xewhall  v.  Apple- 
ton,  114  N.  Y.  140;  Smith  v.  Clews,  114  N.  Y.  190;  Xelson  v.  Sun  Mur. 
Ins.  Co.,  7HST.Y.  453. 


TKCHNICAL  TERMS  AND  UNUSUAL   WORDS.          275 

sary  consequence,  that  courts  must,  in  the  first  in- 
stance, judge  of  the  meaning,  force  and  effect  of  lan- 
guage. The  meaning  of  words,  and  the  grammat- 
ical construction  of  the  English  language,  so  far  as 
they  are  established  by  the  rules  and  usages  of  the 
language,  are,  prima  facie,  matter  of  law,  to  be  con- 
strued and  passed  upon  by.  the  court.  But  language 
may  be  ambiguous,  and  used  in  different  senses;  or 
general  words,  in  particular  trades  and  branches  of 
business — as  among  merchants,  for  instance — may 
be  used  in  a  new,  peculiar  or  technical  sense;  and, 
therefore,  in  a  few  instances,  evidence  may  be  re- 
ceived from  those  who  are  conversant  with  such 
branches  of  business,  and  such  technical  or  peculiar 
use  of  language  to  explain  or  to  illustrate  it."  In 
that  case  the  court  held  that  the  testimony  of  ex- 
perienced persons  could  not  be  received  to  show 
that  stones  of  a  considerable  size  were  universally 
known  as,  and  called  gravel. 

A  gas-fitter  has  been  permitted  to  testify  whether 
gas-meters  were  usually  classified  as  gas-fixtures,  in 
an  action  for  the  price  of  gas  meters  alleged  to  have 
been  furnished  to  fulfill  a  contract  for  gas-fixtures.2 
The  opinion  of  one  engaged  in  the  oil  business  has 
been  received,  to  show  that  in  a  contract  for  the 
sale  of  a  certain  number  of  "barrels"  of  petroleum 
oil,  the  word  "barrel"  meant  a  vessel  of  a  certain 
capacity,  and  not  the  statute  measure  of  quanity.* 
So  the  opinion  of  an  expert  has  been  received  to  show 
that  the  meaning  of  the  term  "horn  chains,"  used 
in  a  contract,  meant  chains  made  of  hoof  and  horn:' 

1  Brown  v.  Brown.  10  Met.  573. 

*  Downs  v.  Sprague,  1  Abbott's  Ct.  of  App.  Decis.  (N\  Y.)  550. 

3  Miller  v.  Stevens,  100  Mass.  518. 

4  Sweet  v.  Shurnway,  102  Mass.  365. 


27(>  EXPERT    TESTIMONY. 

and  the  term  ''port  risk,'"  as  used  by  underwriters 
in  policies  of  marine  insurance,  had  a  special  signi- 
fication.1 Agents  for  insurance  companies  have 
heen  allowed  to  testify  whether  the  words  "short 
rates,"  as  used  in  policies,  include  all  the  expenses 
of  taking  the  risk.2  Where  a  contract  was  for  the 
sale  of  "one  hundred  and  fifty  casks  of  one  ton  each, 
best  madder,  121-4,'*  dealers  in  madder  were  al- 
lowed to  testify  that  the  figures  as  used  in  the  con- 
tract, meant  12  1-4  cents  per  pound.1  The  opinions 
of  stock  brokers  have  been  received  to  explain  the 
meaning  among;  brokers  and  dealers  in  stock  of  the 

c  o  i 

words,  "settled  at  the  market  72  3-4."  And  the 
opinion  of  iron  merchants  has  been  received  as  to 
what  was  meant  by  "No.  1  Shott's  Scotch  pig  iron. ' ' 
Persons  engaged  in  the  construction  and  operation 
of  mills  and  factories  run  by  water,  and  acquainted 
with  the  application  of  water  to  machinery,  have 
been  permitted  to  testify  as  to  the  technical  meaning 
of  the  term  "race-way."6  And  experts  may  be  called 
to  decipher  abbreviated  and  elliptical  entries  in  the 
book  of  a  deceased  notary.7 

§    119.      Translation  by  Experts  of  Writings  from  a 

Foreign  Language. — The  rule  is  that  when  an  in- 
strument is  written  in  a  foreign  language  one 
skilled  in  such  language  is  to  be  called  to 
translate  it.8  But  it  is  not  competent  for  a 

1  Nelson  v.  Sun  Mutual  Ins.  Co.,  71  N.  Y.  453. 

2  Burlington  Ins.  Co.  v.  Leod,  40  Kan.  54. 

3  Dana  v.  Fiedler,  12  N.  Y.  40. 

«  Storey  v.  Salomon,  6  Daly  (N.  Y.),  532. 

5  Pope  v.  Filley,  9  Fed.  Eep.65,  69. 

6  Wilder  v.  Decou,  26  Minn.  10. 

7  Sheldon  v.  Benham,  4  Hill,  129. 

8  Di  Sora  v.  Phillips,  10  H.  L.  Cas.  624;  Stearine  v.  Hentzmau.    17  C. 
B.  (N.  S.)  56;  Sheldon  v.  Benham,  4  Hill,  129:  Geylin  v.  Villeroi,  2 
Houston  (Del.),  311. 


OPINIONS  (>F  F.XI'KRTS  IN  MISCELLANEOUS  CASES.  277 

witness  called  to  translate  such  a  writing  to  give 
any  opinion  as  to  its  construction,  that  being  a 
question  for  the  court.1 

If  the  court,  however,  should  undertake  to  trans- 
late a  writing  without  the  aid  of  experts,  and  should 
translate  it  correctly,  it  is  probable  that  a  new  trial 
could  not  be  obtained.  In  one  of  the  cases  we  find 
the  following  upon  this  point:  "Indeed,  if  the 
whole  libel  had  been  published  in  a  foreign  language, 
and  the  court  had  assumed  to  translate  and  define 
its  meaning  to  the  jury  without  the  aid  of  experts, 
it  is  difficult  to  see  how  this  error  could  be  made 
the  ground  for  a  new  trial.  It  is  only  error  that 
prejudices,  which  justifies  setting  aside  the  verdict; 
and  if  that  translation  is  in  fact  correct,  it  is 
difficult  to  see  Avherein  the  prejudicial  error  lies." 

§  120.  Opinions  of  Experts  in  Miscellaneous 
Cases. — From  what  has  been  stated  it  appears  that 
the  opinions  of  persons  skilled  in  any  trade  or  call- 
ing are  experts  as  to  matters  of  technical  skill  relat- 
ing to  their  trade  or  calling,  and  their  testimony  may 
be  received  as  such  in  evidence.  In  the  preceding  secr 
tions  of  this  chapter,  attention  has  been  called  to  the 
application  which  has  been  made  of  this  principle 
in  respect  to  certain  trades,  but  the  principle  is 
equally  applicable  in  all  trades  and  callings  when 
the  question  at  issue  is  technical  and  not  within  the 
common  experience  of  men  in  general.  Thus,  the 

1  A  Belgian  consel  was  called  to  translate  the  following :     "Les  infor- 
mations sur  Gustave  Sichel  sont  telles  que  nous  ne  pouvons  lui  livrer  les 
2500  caisses  que  contre  connaisement.    Si  vous  voulez,  nousvous  enver- 
rons  le?  connaisements,    et  vous  ne  les  lui  de  livrerez  que   contre    pay- 
ment.1'   He  was  asked  to  what  the  article  ules"  referred,  and  said  it 
was  applicable  to  the  "connaisements.''    This   was   held    to  be  error. 
Stearine  v.  Hentzman,  supra. 

2  Gibson  v.  Cincinnati  Enquirer  fU.  S.  Cir.  Ct.),  5  Cent.  L.  J.  380. 


278  EXPERT    TESTIMONY. 

opinion  of  an  ethnologist  has  been  received  upon 
the  question  of  race,1  the  opinions  of  persons  having 
a  peculiar  and  special  knowledge  of  iron,  upon  the 
question  of  the  quality  and  strength  of  iron,  the 
breaking  of  which  caused  an  accident;2  the  opinion 
of  a  paver  as  to  the  number  of  bricks  laid  in  a  pave- 
ment, ascertained  from  a  computation  by  the  square 
yard  according  to  usage  of  the  craft,  without  reckon- 
ing them  by  tale;3  the  opinions  of  witnesses  having 
knowledge  of  the  geological  structure  and  formation 
of  the  neighborhood,  as  to  the  existence  of  coal 
seams,  and  of  the  quality  and  quantity  on  the  lands 
in  question;4  the  opinion  of  a  blacksmith  as  to 
whether  the  shoes  of  a  horse  were  fit  for  use;5  of  per- 
sons engaged  in  the  wool  trade,  as  to  the  liability  of 
wool  waste  to  ignite  spontaneously;6  the  opinion  of  a 
practical  miner  as  to  the  safety  of  a  particular  blast- 
ing powder  which  he  had  used.7  So  one  employed  in 
manufacturing  explosive  compounds,  and  who  had 
made  blasts  in  all  kinds  of  rocks  and  stones,  in  every 
kind  of  blasting,  has  been  held  qualified  "as  a  most 
competent  expert,"  to  state  whether  portions  of  a 
rock  could  have  been  thrown  280  feet  from  the  point 
of  discharge,  the  blast  being  exploded  in  the  excava- 
tion of  a  sewer.8  The  opinions  of  experienced  per- 


1  White  v.  Clemens,  39  Ga.  232;    Xave's    Admr.  v.  Williams,  22  Ind. 
368;  State  v.  Jacobs, 6  Jones  (X.  C.)  Law, 284. 

2  Claxton's  Admr.  v.  Lexington,  etc.  R.  R.  Co.,  13  Bush    (Ky.),  636; 
King  v.  New  York  Central,  etc.  R.  R.  Co.,  72  ]ST.  Y.  607;  Pope  v.  Filley, 
9  Fed.  Rep.  65,  66. 

3  Mayor,  etc.  v.  O'Neill.  1  Pa.  St.  342. 
<Stambaugh  v.  Smith,  23  Ohio  St.  584,  594. 

5  Evarts  v.  Middlebury,  53  Vt.  626. 

6  Whitney  v.  Chicago  &  N.  W.  R.  R.  Co.,  27  Wis.  :?'27. 

7  Snowden  v.  Idaho  Quartz  Manuf.  Co.,  55  Cal.  4">i>. 

8  Koster  v.  Noonan,  8  Daly  (X.  Y.),  232. 


OPINIONS  OF  EXPERTS  IN  MISCELLANEOUS  CASES.    279 

sons  have  been  received  as  to  whether  two  pieces  of 
wood  were  parts  of  the  same  stick  of  natural  growth. ' 
And  it  has  been  held  that  an  expert  may  be  asked 
what  the  condition  of  a  water-pipe,  as  described  by 
another  witness,  indicated  as  to  the  original  con- 
struction of  the  joint.2  A  well-digger,  who  from  the 
exercise  of  his  business  in  the  vicinity  has  become 
acquainted  with  the  character  of  the  soil  and  sub- 
soil, has  been  allowed  to  testify  to  his  opinion, 
whether  a  given  thickness  of  subsoil,  if  undisturbed, 
was  impervious  to  water.3  A  witness  who  had  been 
engaged  for  years  in  measuring  and  selling  water  to 
miners,  was  held  sufficiently  qualified  to  give  his 
opinion  as  to  the  effect  which  a  dam  across  a  stream 
would  have  in  raising  the  water  in  the  channel 
above.4  When  the  question  was  as  to  the  cause  of 
the  settling  and  cracking  of  the  surface  of  the  earth, 
the  opinions  of  experts  were  received,  they  having 
examined  the  premises,  and  being  qualified  by  learn- 
ing, observation  and  experience  to  form  an  intelli- 
gent judgment  in  the  matter.5 

The  opinion  of  an  expert  has  been  received  as  to 
the  quantit}'  of  stone  furnished  for  a  water-works 
reservoir,  where  the  average  amount  could  only  be 
estimated  approximately.6  The  testimony  of 
experts  has  been  received  as  to  whether  it  is  possible 
to  examine  all  the  layers  in  a  case  of  old  tobacco 
without  injuring  the  tobacco,  and  as  to  what  is  the 
proper  method  of  examining  such  a  case  for  the  pur- 

1  Commonwealth  v.  Choate,  103  Mass.  451. 

2  Hand  v.  Brookline,  126  Mass.  324. 

3  Bnffum  v.  Harris,  5  R.  I.  250. 

4  Blood  v.  Light,  31  Cal.  115. 

J  Clark  v.  Willett,  35  Cal.  534,  544. 
8  Eyerman  v.  Sheehan,  52  Mo.  221. 


280  EXPERT    TESTIMONY. 

pose  of  determining  the  kind  and  quality  of  the 
tobacco.1  Experts  have  been  allowed  to  testify  that 
a  certain  quality  of  steel  was  not  considered  suitable 
for  the  manufacture  of  steel  rails.2  One  who  had 
made  and  sold  railroad  ties  has  been  held  compe- 
tent to  testify  as  to  the  quality  of  certain  ties.3  And 
in  general  skilled  witnesses  are  allowed  to  testify  as 
to  the  quality  of  gocds.4  The  testimony  of  a  tailor 
has  been  received  as  to  wh ether  a  pocket-book  could 
have  been  taken  out  through  a  cut  made  by  a  pick- 
pocket in  a  coat,  it  appearing  that  the  coat  had  been 
mended  subsequently  to  his  examination  of  it.5  The 
genuineness  of  a  postmark  may  be  shown  by  the 
testimony  of  a  postmaster,6  and  perhaps  by  the  testi- 
mony of  any  one  who  has  been  in  the  habit  of  re- 
ceiving letters  with  that  mark.7  An  expert  has 
been  permitted  to  express  an  opinion  as  to  the  con- 
tents of  a  tree  from  the  size  of  its  stump.8 

Where  books  and  schedules  of  the  assets  and  debts 
of  a  party  are  put  in  evidence,  an  accountant  has 
been  allowed  to  give  the  results  of  computations 
therefrom.9  Witnesses  who  stated  that  they  were 
accustomed  to  handling  and  driving  horses,  and 
knew  their  habits,  have  been  allowed  to  express  an 
opinion  that  certain  obstructions  on  a  bridge  were 
of  such  a  character  as  would  be  likely  to  frighten 


1  Atwater  v.  Clancy,  107  Mass.  369. 

2  Booth  v.  Cleveland  Mill  Co.,  74  X.  Y.  27. 

3  Jeffersonville  E.  R.  Co.  v.  Lanham,  27  Ind.  171. 

4  Myers  v.  Murphy,  60  Ind.  282;  Brown  v.  Leach,  107  Mass.  364. 
'  People  v.  Morrigan,  29  Mich.  5. 

6  Abbey  v.  Lill,  5  Bing.  299,  304. 

7  Woodcock  v.  Houldsworth,  16  M.  &  W.  124. 

8  Frantz  v.  Ireland,  66  Barb.  386. 

y  Jordan  v.  Osgood,  109  Mass.  457. 


OPINIONS  OF  EXPERTS  IX  MISCELLANEOUS  CASES.    281 

horses  of  ordinary  gentleness.  "The  nature,  habits, 
and  peculiarities  of  horses,"  said  the  court,  "are  not 
known  to  all  men.  Persons  who  are  in  the  habit  of 
handling  and  driving  horses,  from  this  experienr- . 
learn  their  habits,  nature,  etc.,  and  are,  therefore, 
better  able  to  state  the  probable  conduct  of  a  horse 
under  a  given  state  of  circumstances,  in  which  they 
have  in  their  experience  witnessed  their  conduct  un- 
der similar  circumstances,  than  persons  having  no 
experience  whatever  with  horses."1 

The  opinions  of  persons  accustomed  to  witness 
the  agility  and  power  of  certain  fish,  in  overcoming 
obstructions  in  the  ascent  of  rivers,  and  who  have 
acquired  superior  knowledge  upon  that  subject,  have 
been  held  admissible  for  the  purpose  of  showing 
that  a  certain  stream,  in  its  natural  state,  would  or 
would  not  be  ascendible  by  such  fish.  "The  wit- 
nesses had  acquired  from  observation,  superior 
knowledge  upon  this  subject.  It  appears  to  us  to 
fall  within  that  class  of  cases  in  which  the  opinions 
of  persons  skilled  in  any  art,  science,  trade  or  busi- 
ness are  received."  A  brick  and  tile  maker,  hav- 
ing had  some  years'  experience  in  his  trade,  has  been 
held  competent  to  give  an  opinion  as  an  expert  on 
the  proper  mode  of  burning  tiles,  and  as  to  what 
would  be  the  effect  of  burning  in  one  way  or  an- 
other.3 An  architect  has  been  permitted  to  testify 
that  the  work  done  on  a  building  was  performed  in 
compliance  with  the  contract.4  One  who  had  been 


1  Morelandv.  Mitchell  County.  -40  Iowa,  401. 

2  Cottrill  v.  Myrick,  12  Me.  222,  231. 

3  Wiggins  v.  Wallace,  19  Barb.  (X.  Y.)  33S. 
*  Tucker  v.  Williams.  2  Hilton  (X.  Y.)  562. 


282  EXPERT    TESTIMONY. 

engaged  for  over  twenty  years  in  the  manufacture 
of  paper,  has  been  held  competent  to  testify  as  to 
what  the  condition  of  a  paper  mill  and  its  machinery 
was  at  a  certain  time.1  The  opinion  of  a  witness  ex- 
perienced in  the  use  of  guns,  has  been  received  as 
to  the  length  of  time  since  the  weapon  was  dis- 
charged.2 And  it  has  been  held  that  witnesses  who 
saw  a  pistol  immediately  after  it  had  been  discharged, 
and  who  were  familiar  with  such  weapons,  could  be 
asked  their  opinion  on  the  question,  whether  the 
appearances  indicated  how  many  barrels  had  been 
fired,  and  which  ones.3  A  witness  accustomed  to 
packing  marbles  for  transportation,  has  been  per- 
mitted, against  objection,  to  state  whether  certain 
marbles  were  properly  packed,  the  court  declaring 
that  such  a  question  was  a  proper  one  for  the  testi- 
mony of  experts.4  An  expert  has  been  allowed  to 
testify  as  to  the  usual  manner  in  which  zinc  is  im- 
ported.5 A  witness  who  is  an  expert  in  the  curing 
and  care  of  meats,  may  testify  whether  hams  pre- 
pared in  a  certain  prescribed  way  and  shipped  for 
transportation  to  a  specified  point,  if  properly 
stowed  and  cared  for,  "ought  to  have  borne  trans- 
portation" to  that  point.6  Such  a  witness  may  also 
be  asked  whether  hams  shipped  in  a  specified  condi- 
tion, would  arrive  at  their  destination  in  as  good  con-, 
dition  as  when  shipped,  and  as  to  what  would  likely 
be  the  effect  of  the  weather  upon  provisions  so  ship- 


1  Blodgett  Paper  Co.  v.  Farmer,  41 1ST.  H.  401. 
2Monghon  v.  The  State,  57  Ga.  102. 

3  Wynne  v.  State,  56  Ga.  113. 

4  Shriver  v.  Sioux  City,  etc.  R.  R.  Co.,  24  Minn.  506. 

5  Richards  v.  Doe,  100  Mass.  524. 

6 Leopold  v.  Van  Kirk,  29  Wis.  548. 


OPINIONS  OF  EXPERTS  IN  MISCELLANEOUS  CASES. 

petl.'  And  in  an  action  to  recover  damages  on  ac- 
count of  the  unsound  condition  of  hams  shipped 
from  Iowa  to  Alabama,  there  being  evidence  that 
they  were  sound  when  shipped,  it  was  held  compe- 
tent to  show  by  expert  testimony  that  if  they  were 
unsound  when  received  in  Alabama  after  an  ordi- 
nary transit,  they  must  have  been  unsound  when 
shipped." 

The  owner  of  a  tan-yard,  who  had  been  engaged 
in  the  business  of  tanning  for  twenty-three  years, 
"seeing  the  work  going  on  and  knowing  how  it  was 
done,"  has  been  allowed  to  testify  as  an  expert  as  to 
matters  connected  Avith  such  business,  although  he 
was  not  himself  a  practical  tanner,  but  employed 
others  to  do  the  work  for  him.3  A  person  who  had 
peculiar  opportunity  for  observing  cotton,  its  nature 
and  quality,  its  liability  to  catch  fire  and  burn,  has 
been  allowed  to  testify  that  if  a  blazing  missile,  or 
a  burning  coal  was  applied  to  cotton,  the  cotton 
would  be  thereby  fired  immediately,  and  would 
burn  with  such  rapidity  that  its  extinguishment 
would  be  improbable,  if  not  impossible.4 

In  an  action  brought  for  damages  sustained  from 
the  giving  away  of  an  elevator  in  a  hotel  it  was  held 
that  an  expert  could  not  answer  the  question  whether 
the  appearance  of  machinery  would  suggest  to  a 
prudent  man  the  necessity  of  an  examination.  That 
was  said  to  be  a  question  for  the  jury. '  But  in  the 
case  last  cited  the  court  say  that,  the  question  to 


1  Kershaw  v.  Wright,  115  Mass.  361. 

2  Forcheimer  v.  Stewart,  73  Iowa,  216. 
;J  Nelson  v.  Wood,  62  Ala.  175. 

4  Seals  v.  Edmondson,  71  Ala.  509. 
n  Goodsallv.  Taylor,  41  Minii.  207. 


284  EXPERT    TESTIMONY. 

what  extent  the  apparent  wear  impaired  the  strength 
of  the  cable  might  have  been  a  question  for  an  ex- 
pert. 

In  a  recent  case  in  Vermont  the  court  decided 
that  expert  testimony  was  not  admissible  to  show 
the  shrinkage  in  measurement  of  hemlock  bark  as 
measured  in  the  pile,  and  afterwards  in  the  car,  that 
being  a  matter  of  which  the  jury  could  judge  from 
a  description  of  the  facts.1 

Brown  v.  Doubleday,  Gl  Vt.  523. 


EXPERT    TESTIMONY    IX    HAXDWRITIXC .  285 


CHAPTER  VII. 

EXPERT    TESTIMONY    IX    HANDWRITING. 


SECTION. 

121.  Proof  of  Handwriting. 

122.  Testimony  of  Non-professional  Witnesses. 

123.  When  the  Opinions  of  Such  Witnesses  are  Inadmissible. 

124.  The  Basis  of  Expert  Testimony  Concerning  Handwriting. 

125.  Who  are  Experts  in  Handwriting. 

126.  Disqualification  of  Experts  Arising  from  Bias. 

127.  Upon  what  Subjects  Experts  in  Handwriting  can  Testify. 

128.  Genuineness  of  Writings  as  Determined  by  the  Ink. 

129.  The  Qualification  of  Experts  in  such  Cases. 

130.  Comparison  by  Experts  of  Writings  in  Juxtaposition. 

131.  Statutory  Provisions  Concerning  a  Comparison  of  Writings. 

132.  Proof  Under  the  Statutes. 

133.  Comparison  by  Experts  with  Writings  Admittedly  Genuine — In 

the  Absence  of  Statutory  Provision. 

134.  Comparison  by  Experts  of  Writings  in  Juxtaposition  not  Al- 

lowed in  some  States. 

135.  Comparison   in  Doubtful  Cases — The  Intermediate  Theory  of 

the  South  Carolina  Courts. 

136.  The  Right  of  Comparison  with  Writings  Proven  Genuine  for 

the  Purpose — Denied. 

137.  The  Right  of  Comparison  with  Writings  Proven  Genuine  for 

the  Purpose — Affirmed. 

138.  Mode  of   Proof    When  Comparison  is  Allowed  with  Writings 

Proven  Genuine  for  the  Purpose. 

139.  Expert  Should  have  Before  Him  in  Court  the  Writings  Compared. 

140.  Comparison  with  Photographic  Copies. 

141.  Comparison  with  Letterpress  Copies. 

142.  Comparison  with  Writings  Made  on  the  Trial. 

143.  Writings  Admissible  for  Comparison  in  Orthography. 

144.  Comparison   of    Writings— The   Use   on  Cross-examination  of 

Fictitious  Specimens. 


286  EXPERT    TESTIMONY. 

145.  Detection  of  Counterfeit  Bank  Notes. 

146.  Regulation  of  Such  Evidence  by  Statutory  Provision. 

147.  The  Value  of  Expert  Testimony  as  to  Handwriting. 


§  121.  Proof  of  Handwriting. — When  any  doc- 
ument purporting  or  proved  to  be  thirty  years  old 
is  produced  from  its  proper  custody,  there  is  a  pre- 
sumption that  the  signature  and  every  other  part  of 
the  document  which  purports  to  be  in  the  handwrit- 
ing of  any  particular  person  is  in  that  person's  hand- 
writing. And  this  presumption  is  not  limited  to 
formal  instruments  like  wills  and  deeds,  but  it  ex- 
tends to  letters,  receipts,  and  all  other  ancient  writ- 
ings.1 But  in  the  case  of  writings  not  so  old  proof  of 
genuineness  must  be  made.  If  the  person  whose 
writing  it  purports  to  be  is  dead,  or  cannot  be  pro- 
duced at  the  trial,  or  denies  his  signature,  and  there 
are  no  witnesses  who  saw  the  writing  done,  then 
proof  of  the  handwriting  of  the  party  becomes  es- 
sential. And  it  is  with  the  making  of  such  proof 
that  this  chapter  is  concerned. 

§  122.  Testimony  of  Non-professional  Witnesses. 
— 1.  When  the  genuineness  of  handwriting  is  in 
issue,  the  belief  of  any  person  is  admissible  who  has 
seen  the  person  write  whose  writing  is  the  subject  of 
dispute.2  And  the  belief  of  such  a  witness  is  admis- 


1  Wynne  v.  Tjrwhitt,  4  B.  &  Aid.  376;  Feuwick  v.  Reed,  6  Mda.  7; 
Doe  v.  Beynon,  12  A&  E.  431;  Bertie  v.  Beaumont,  2  Price,  307;  Bell  v. 
Brewster,  44  Ohio  St.  690,  694;  W'inn  v.  Paterson,  9  Pet.  663;  Scharff  v. 
Keener,  64  Pa.  St.  376;  Cahill  v.  Palmer,  45  N.  Y. 478;    Goodwin   v. 
Jack,  62  Me.  414;  Berry  v.  Raddin,  11  Allen,  579. 

2  De  La  Motte's  Case,  21  How.  St.  Tr.  810;  Miles  v.  Loomis,  75  N.  Y. 
288,  295;  Bell  v.  Brewster,  44  Ohio  St.  690,  696;  State  v.  Gay,  94  N.  C. 
814;  State  v.  Stair,  87  Mo.  268,  274;  Long  v.  Little,  119  111.  600;  Hopper  v. 
Ashley,  15  Ala.  463;  Moone  v.  Crowder.  72  Ala.  79,  88;  State  v.  Thomp- 
son, 80  Me.  194, 199;  Woodman  v.  Dana,  52  Me.  9,  11;  National  Bank 
v.  Armstrong,  66  Md.  113,  116. 


TESTIMONY  OF    NON-PROFESSIONAL  WITNESSES.    287 

sible,  although  he  may  have  seen  the  person,  whose 
writing  is  in  question,  write  but  once,1  and  that  ten 
years2  or  twelve  years  before.3  The  opinion  of  a 
witness  who  had  not  seen  the  person  write  for  nine- 
teen years  has  been  received.4  So  has  the  opinion 
of  a  witness  who  had  never  seen  the  party  in  ques- 
tion write  anything  but  his  name.5  As  is  said  in  one 
of  the  cases  "the  law  has  fixed  no  limits  to  the  meas- 
ure of  human  capacity,"6  and,  therefore,  will  not 
undertake  to  define  any  specific  number  of  times  the 
witness  must  have  seen  the  party  write,  or  the  limit 
of  time  within  which  the  handwriting  must  have 
been  seen  by  the  witness.  If  the  witness  has  ever 
seen  the  party  write,  and  from  the  exemplar  in  his 
mind  can  form  an  opinion  as  to  the  genuineness  of 
the  signature,  his  opinion  will  be  admissible  for 
what  it  is  worth.  While  the  competency  of  the 
witness  is  not  affected  by  the  lack  of  frequency  of 
observation,  or  the  length  of  time  which  may  have 
elapsed  since  the  writing  was  seen,  the  weight  to  be 
attached  to  the  testimony  will  necessarily  much  de- 
pend on  these  circumstances.7 

2.  But  it  is  not  in  all  cases  necessary  that  the 
witness  should  have  seen  the  party  write,  to  enable 
him  to  identify  the  disputed  writing.  The  opinion 

1  Home  Tooke's  Case,  25  How.  St.  Tr.  71;   W«llman  v.  Wellmau,  8  C. 
&   P.  380;    Garrells  v.  Alexander,  4   Esp.  37;    Warren   v.  Anderson,  8 
Scott,  384;  Edelen  v.  Gough,  8  Gill  (Md.),  87;  Smith   v.  Walton  8  Gill 
(Md.),  18;  Rediout  v.  Newton,  17  N.  H.  71;  Vinton    v.  Peck,  14  Mich. 
2*7,  293;  Peppery.  Barnett,  29  Gratt.  (Va.)  405;  State  v.  Scott,  45  Mo. 
302,  304. 

2  Warren  v.  Anderson,  8  Scott,  384. 

3  Brachman  v.  Hall,  1  Disney,  539. 

4  Home  Tooke's  Case,  25  How.  St.  Tr.  71. 

5  Garrells  v.  Alexander,  4  Esp.  37. 

6  Brachman  v.  Hall,  1  Disney,  539. 

'  Miles  v.  Loomis,  75  N.  Y.  288,  295. 


288  EXPERT    TESTIMONY. 

of  a  witness  may  be  received  who  has  never  seen  the 
party  write  if  he  has  received  letters  from  him  in 
answer  to  letters  written  by  the  witness,  or  under 
his  direction,  and  addressed  to  the  person  whose 
writing  is  in  question.1 

It  is,  of  course,  quite  possible  that  the  correspond- 
ence may  have  been  written  by  some  other  person, 
by  the  authority  of  the  part}'  whose  name  is  used. 
But  as  ordinarily  persons  write  their  own  letters,  un- 
less the  letters  indicate  the  contrary,  the  courts  have 
established  the  principle  that  a  witness  who  has 
never  seen  the  party  write  is  competent  to  testify  if 
he  has  through  correspondence  acquired  a  knowl- 
edge of  such  party's  handwriting. 

3.  The  opinion  of  a  person  is   admissible,   al- 
though  he  may  never  have  seen  the  person  write 
whose  signature  is  in  dispute,  nor  received  letters 
from  him  in  reply  to  letters  written  by  himself,  pro- 
vided writings  purporting  to  have  been  written  by 
such  person  have  passed  through  the  hands  of  the 
witness  in   the  ordinary  course  of  business.     Thus, 
Lord  Denman  has  said:   "The  servant  who  has  habit- 
ually carried  letters  addressed  by  me  to  others  has 
an  opportunity  of  obtaining  a  knowledge  of  my  writ- 
ing, though  he  never  saw  me  write,  nor  received  a 
letter  from  me." 

4.  Likewise  the  opinion  of  a  witness  can  be  re- 
ceived where  he  has  seen  a  signature  which  the  per- 


1  Gould  v.Jones,  1  W.  Bl.  384;  Harrington  v.  Fry,  1  C.  &  P.  289;  Par- 
sons v.  McDaniel,  62  Ga.  100;  Southern  Ex.  Co.  v.  Thornton,  41  Miss. 
216;  Atlantic  Ins.  Co.  v.   Manning,  3  Col.    228;  Empire  Manuf.  Co.  v. 
Stuart,   46  Mich.  482;  Thomas  v.  State,  103  Ind.  419,  429;  Hall  v.  Van 
Vranken.  28  Hun,  403,  404. 

2  Mudd  v.  Suckermore,  5  Ad.  &  Ell.  703. 


WHEN  OPINIONS    OF  WITNESSES  INADMISSIBLE.     289 

son  whose  signature  is  disputed  has  acknowledged 
to  be  his.1 

And  in  a  recent  case  in  North  Carolina  a  witness 
was  allowed  to  testify  as  to  the  handwriting  of  his 
uncle,  he  having  seen  many  letters  purporting  to 
come  from  him  to  the  father  of  witness,  about  family 
matters  or  family  business,  concerning  which  no  one 
else  was  familiar.1 

5.  Moreover,  a  person  is  competent  to  express  an 
opinion  concerning  the  genuineness  of  a  signature 
where  the  witness  at  the  time  of  holding  an  official 
position,  has,  in  the  performance  of  his  duties, 
become  acquainted  with  the  signature  or  writ- 
ing of  the  person  whose  signature  is  in  dispute.8 
Thus  the  signature  of  a  justice  of  the  peace  may  be 
proved  by  another  public  officer  who  has  seen  it  as 
a  certificate  on  papers  filed  in  his  office.4 

§  123.  When  the  Opinions  of  Non-Professional 
Witnesses  are  Inadmissible.  —  Where  the  knowl- 
edge of  an  ordinarv  witness  as  to  the  hand- 

" 

writing  of  a  person  whose  signature  is  the  sub- 
ject of  dispute  is  acquired  after  the  disputed 
signature  is  alleged  to  have  been  made,  the  wit- 
ness may  be  incompetent  to  testify  on  the  knowl- 
edge so  acquired.  Thus,  in  an  early  English  case, 
Lord  Kenyon  rejected  the  evidence  of  a  witness  who 
stated  that  he  had  seen  defendant  write  his  name 
several  times  before  the  trial,  he  having  written  it  in 
order  to  show  the  witness  his  true  manner  of  writ- 

1  Hammond  v.  Varian,  54  X.  Y.  398;  Gordon  T.  Price,  10  Ired.  (X.  C.) 
388. 

2  Tuttle  v.  Rainey,  98  N.  C.  513. 

3  Yates  v.  Yates,  76  X.  C.  142;  Goddard  v.  Gloninger,  5  Watts,  209; 
Dungan  v.  Beard,  2  X.  &  M.  400;  Doe  v.  Roe,  31  Ga.  599;  Sill  v.  Reese, 
47  Cal.  343;  Amherst  Bank  v.  Root,  2  Met.  523. 

4  Rogers  v.  Ritter,  12  Wall.  317. 

(19) 


290  EXPERT   TESTIMONY. 

ing,  so  that  the  witness  might  be  able  to  distinguish 
it  from  his  alleged  signature.1  The  reason  was,  of 
course,  the  possibility  that  the  defendant  inten- 
tionally disguised  his  hand.  And  in  a  case  decided 
a  few  years  since  in  Illinois,  a  witness  who  had  no 
acquaintance  with  the  handwriting  of  the  party  un- 
til after  a  particular  signature  was  denied,  and  who 
then  examined  such  person's  report  as  guardian,  filed 
in  the  county  court,  and  the  signature  thereto,  was 
held  not  competent  to  express  an  opinion  as  to  the 
genuineness  of  the  signature  in  dispute.  The  court 
say:  "This  is  clearly  insufficient  to  entitle  him  to 
give  his  opinion  in  evidence.  His  knowledge  was 
acquired  under  circumstances  tending  to  bias  his 
mind,  imperceptibly  though  it  may  have  been  to 
himself.  It  is  scarcely  probable  that  he  did  not  have 
some  impression  of  the  genuineness  of  the  signature 
before  he  examined  the  guardian's  reports.  That 
he  felt  an  interest  in  the  question,  is  showrn  by  the 
fact  that  he  put  himself  to  the  trouble  to  make  the 
examination.  When,  therefore,  he  investigated, 
however  honest  he  may  have  believed  himself  to  be, 
the  natural  tendency  of  his  mind  would  most  likely 
find  something  to  confirm  his  preconceived  opinion. 
In  this  way  important  differences  may  have  been 
overlooked,  and  slight  resemblances  greatly  magni- 
fied. Knowledge  thus  acquired  is  vastly  different 
from  that  acquired  by  repeatedly  seeing  a  handwrit- 
ing, and  scrutinizing  it,  when  no  unfavorable  cir- 
cumstances exist  to  arouse  suspicion  and  excite  the 
imagination."2 


1  Stranger  v.  Searle,  1  Esp.  14. 

2  Board   of  Trustees  v.  Misenheimer,  78  111.  22,  24  (1875).     And  see 
Snyder  v.  McKeever,  10  Brad.  (111.)  190;  Reese  v.  Reese,  90  Perm.  89. 


TESTIMONY    CONCERNING    HANDWRITING. 

When  the  statute  provides  that  a  person  inter- 
ested in  the  event  shall  not  be  examined  as  a  witness 
in  his  own  behalf,  or  interest  concerning  a  personal 
transaction  or  communication  between  the  witness 
and  the  deceased  person,  it  has  been  held  that  such  a 
witness  is  incompetent  to  prove  the  signature  of  the 
deceased  to  the  instrument  under  which  the  witness 
claims.1 

§  124.  The  Basis  of  Expert  Testimony  Concern- 
ing- Handwriting.  —  But  the  opinions  of  profes- 
sional witnesses  are  also  received  on  the  subject 
of  handwriting.  Calligraphic  experts  have  for 
years  asserted  the  possibility  of  investigating  hand- 
writing upon  scientific  principles,  and  the  courts 
have  consequently  admitted  such  persons  to  testify 
in  cases  of  disputed  handwriting.  It  is  claimed  that 
experiment  and  observation  have  disclosed  the  fact 
that  there  are  certain  general  principles  which  may 
be  relied  upon  in  questions  pertaining  to  the  genu- 
ineness of  handwriting.  For  instance,  it  is  asserted 
that  in  every  person's  manner  of  writing  there  is  a 
certain  distinct  prevailing  character,  which  can  b& 
discovered  by  observation,  and  being  once  known 
can  be  afterwards  applied  as  a  standard  to  try  other 
specimens  of  writing,  the  genuineness  of  which  is 
disputed.2  Handwriting,  notwithstanding  it  may  be 
artificial,  is  always,  in  some  degree,  the  reflex  of  the 
nervous  organization  of  the  writer.  Hence,  there  is 
in  each  person's  handwriting  some  distinctive  char- 
acteristic, which,  as  being  the  reflex  of  his  nervous 
organization,  is  necessarily  independent  of  his  own 
will,  and  unconsciously  forces  the  writer  to  stamp  the 

1  Garvey  v.  Chvens,  37  Htm  (X.  Y.),  498. 

2  See  Plunkett  v.  Bowman,  2  McCord,  139;  Hanriot  v.  Sherwood,  82 
Va.  19. 


292  EXPERT   TESTIMONY. 

writing  as  his  own.  Those  skillful  in  such  matters 
affirm  that  it  is  impossible  fora  person  to  successfully 
disguise  in  a  writing  of  any  length  this  character- 
istic of  his  penmanship;  that  the  tendencies  to  angles 
or  curves  developed  in  the  analysis  of  this  character- 
istic may  be  mechanically  measured  by  placing  a 
fine  specimen  within  a  coarser  specimen,  and  that 
the  strokes  will  be  parallel  if  written  by  the  same 
person,  the  nerves  influencing  the  direction  which 
the  will  gives  to  the  pen. 

So,  too,  it  is  claimed  that  no  two  autograph  signa- 
tures, written  in  a  natural  hand,  will  be  perfect  fac- 
similes. In  the  famous  Rowland  will  case,1  Prof. 
Pierce,  a  very  distinguished  mathematician,  at  that 
time  the  professor  of  mathematics  in  Harvard  Uni- 
versity, testified  that  the  odds  were  just  exactly 
2,866,000,000,000,000,000,000  to  1  that  an  individ- 
ual could  not  with  a  pen,  write  his  name  three 
times  so  exactly  alike  as  were  the  three  alleged  sig- 
natures of  Sylvia  Ann  Rowland ,  the  testatrix,  to  a 
will  and  two  codicils.  The  experts,  therefore,  claim, 
that  if,  upon  superimposition  against  the  light,  they 
find  that  two  signatures  perfectly  coincide,  that  they 
are  perfect  fac- similes ,  that  it  is  a  probability, 
amounting  practically  to  a. certainty,  that  one  of  the 
signatures  is  a  forgery. 

§  125.  Who  are  Experts  in  Handwriting:. — It  be- 
ing granted  that  there  is  such  a  thing  as  a  science 
of  handwriting,  it  follows  that  the  opinions  of  wit- 
nesses who  are  skilled  in  the  science  are  admissible 
in  evidence  in  accordance  Avith  a  fundamental  prin- 
ciple already  considered.2  It  is  of  course  error  to 

1  4  Am.  Law  Review,  625,  649 
8  See  section  6,  p.  19. 


KXPERTS    IN    HANDWRITING.  293 

allow  n  witness,  offered  as  an  expert  in  handwriting, 
to  give  testimony  in  handwriting  until  an  examina- 
tion has  shown  that  he  is  possessed  of  sufficient  skill 
and  experience  to  warrant  the  reception  of  his  opin- 
ions. And  the  principle  has  been  laid  down  in  gen- 
eral terms  that,  whenever  handwriting  is  a  subject  of 
controversy  in  judicial  proceedings,  the  opinions  of 
''witnesses  who  by  study,  occupation  and  habit  have 
been  skillful  in  marking  and  distinguishing  the 
characteristics  of  handwriting"  may  be  received  in 
evidence.1 

In  passing  on  the  qualifications  of  a  witness  to 
give  expert  testimony  on  the  subject  of  handwriting 
the  courts  attach  great  importance  to  the  avocation 
of  the  witness.  If  it  has  been  such  as  naturally 
qualifies  him  to  judge  of  handwriting,  the  court 
will  allow  him  to  testify  as  an  expert.  If,  however, 
his  business  experience  has  not  been  such  as  to  give 
him  any  special  skill  in  the  examination  of  disputed 
writings,  he  will  not  be  permitted  to  testify  as  an 
expert,  unless  it  is  made  to  appear  that  he  has  in 
some  other  way  acquired  actual  skill  and  scientific 
knowledge.*  The  rule  is  well  laid  down  in  a  recent 
case  in  the  Supreme  Court  of  California,  where  it  is 
said  that  the  witness  "must  have  been  educated  in 
the  business  about  which  he  testifies;  or  it  must  first 
be  shown  that  he  has  acquired  actual  skill  and 
scientific  knowledge  upon  the  subject."  If  the  wit- 
ness has  really  acquired  actual  skill  and  scientific 
knowledge  upon  the  subject  of  handwriting,  he  is 
none  the  less  an  expert  because  he  has  not  happened 
to  have  been  in  situations  where  his  duty  required 

1  rtweetser  v.  Lowell,  33  Me.  450. 

2  State  v.  Tompkins,  71  Mo.  616;  Wagner  v.  Jacobv   26  Mo.  530. 

3  Goldstein  v.  Black,  50  Cal.  464. 


294  EXPERT    TESTIMONY. 

him  to  distinguish  between  genuine  and  counterfeit 
handwriting.1 

The  fact  that  the  expert  has  no  other  knowledge 
of  the  writing  in  dispute  than  that  derived  by  a  com- 
parison of  the  disputed  writing  with  others  that  are 
genuine,  is  not  regarded  as  any  disqualification 
whatever.2  This  must  be  regarded  as  the  rule,  al- 
though it  was  laid  down  at  one  time  that  an  expert 
who  had  never  seen  the  party  write  could  not  give  his 
opinion  as  to  the  genuineness  of  the  writing  in  ques- 
tion based  solely  on  a  comparison  of  writings,  but 
that  he  was  to  testify  to  the  condition  and 
appearance  of  the  words,  and  of  the  letters 
and  characters  contained  in  the  writings,  and 
point  out  and  explain  similarities  and  differ- 
ences.' When  an  expert  acquires  a  knowledge 
of  the  handwriting  of  a  person  by  simply  observing 
him  write  several  times,  and  this  for  the  purpose  of 
testifying,  it  is  laid  down  that  he  is  incompetent  to 
give  an  opinion  as  to  the  genuineness  of  that  person's 
signature.4  It'is  quite  possible  that  the  party  may 
have  written  differently  through  design.5 

Mere  opportunity  afforded  for  observation  of 
handwriting  does  not  of  itself  qualify  one  to  give 
testimony  as  an  expert  in  the  science  of  handwriting, 
and  the  mere  fact  that  a  witness  has  sometimes  com- 
pared the  signatures  of  individuals,  where  disagree- 

1  Sweetser  v.  Lowell,  33  Me.  450. 

2  Miles  v.  Loomis,  75  X.  Y.  287;  State  v.  Shinborn,46  X.  H.  497;  Cal- 
kins v.  State.  14  Ohio  St.  222;  Macomber  v.  Scott,  10  Kan.  335;  Moody 
v.  Rowell,  17  Pick.  (Mass.)  490. 

3  Roe  v.  Roe,  40  X.  Y.  Superior  Ct.  1 ;  Frank-  v.  Chemical   National 
Bank,  37  Ib.  30. 

*  Reese  v.  Reese,  90  Pa.  St.  89.     And  see  §  123. 

5  Stranger  v.  Searle,  1   Espinasse,  14.     And  see  Springer  v.  Hall,  83 
Mo.  693,  697. 


EXPERTS    IN    HANDWRITING.  295 

ments  as  to  their  genuineness  have  arisen,  has  been 
held  not  sufficient  to  render  him  competent  to  tes- 
tify as  an  expert  in  disputed  writings.1  It  is  not 
necessary  to  constitute  one  an  expert  and  qualify 
him  to  testify  as  to  a  comparison  of  handwritings, 
that  he  should  have  made  a  comparison  of  hand- 
writing a  single  specialty.  As  said  in  one  of  the 
cases:  "It  is  enough  that  he  has  been  engaged  in 
some  business  which  calls  for  frequent  comparisons, 
and  that  he  has  in  fact  been  in  the  habit  fora  length 
of  time  of  making  such  comparisons." 

In  Iowa  the  court  has  been  somewhat  liberal  in 
its  determination  of  what  is  necessary  to  qualify  one 
as  an  expert  in  handwriting.  According  to  the  view 
taken  by  that  court  it  would  appear  that  almost  any 
business  man  is  qualified  to  express  an  opinion  as 
an  expert  in  such  cases.  A  witness  has  there  been 
held  competent,  who  testified  on  his  preliminary  ex- 
amination that  he  did  not  consider  himself  an  expert 
in  handwriting,  and  had  never  made  it  a  business 
to  compare  or  detect  feigned  or  forced  handwriting. 
That  he  presumed  he  had  some  skill  in  comparing 
handwriting,  but  did  not  pretend  to  any  extra  skill, 
simply  thinking  that  he  was  as  good  a  judge  as  busi- 
ness men  generally.  He  had  been  a  clerk  in  a  store, 
the  editor  of  a  newspaper,  and  for  the  last  fifteen 
years  a  lawyer.  He  had  examined  a  good  deal  of 
writing,  and  said  he  had  been  in  the  habit  of  exam- 
ining bank  bills  to  test  their  genuineness.  So,  in 
the  same  case,  a  merchant  was  held  competent,  who 
did  not  profess  to  be  an  expert,  but  had  examined 
bank  bills  to  detect  counterfeits.1  A  witness  who 

1  Goldstein  v.  Black,  50  Cal.  464. 
1  Ort  v.  Fowler,  31  Kan.  478,  486. 
3  Hyde  v.  Woolfolk,  1  Iowa.  159. 


296 


EXPERT    TESTIMONY. 


merely  professed  to  be  as  good  a  judge  of  handwrit- 
ing as  business  men  generally,  would  certainly  not 
be  regarded  in  some  courts  as  possessing  the  peculiar 
skill  of  an  expert.  But  the  court  say  that,  "It  is 
true  that  persons  giving  evidence  on  a  matter  per- 
taining to  their  particular  science,  trade  or  art,  come 
most  strictly  and  technically  under  the  term  'ex- 
perts,' but  we  cannot  consent  to  the  proposition  that 
no  others  come  within  it,  and  are  allowed  to  be  wit- 
nesses in  any  case.  It  may  very  probably  be  true, 
that  none  are  to  be  taken  as  experts  on  matters  per- 
taining to  a  particular  calling,  art  or  science,  but 
those  who  are,  or  have  been  practiced,  in  such  art 
or  science.  But  there  are  many  subjects  of  inquiry 
which  do  not  belong  to  a  particular  art,  etc.,  but  on 
which  a  greater  or  less  degree  of  knowledge  is  com- 
mon to  many  men  in  different  callings."  And  the 
cotfrt  concluded  that  a  comparison  of  writings  did 
not  present  such  an  inquiry  as  required  a  witness  of 
a  particular  calling  as  an  expert,  but  that  his  com- 
petency depended  on  his  means  of  knowledge  as  a 
business  man  and  his  intelligence. 

When  a  witness  testified  "I  am  an  expert  in  writing, 
by  having  written  a  great  deal,  and  by  having  seen 
and  read  a  great  deal  of  writing,"  the  Court,  of  Ap- 
peals of  Texas  said,  "The  witness  qualified  himself 
fully  as  an  expert."  In  another  case  in  the  same 
court  it  was  held  that  error  was  committed  in  allow- 
ing a  witness  to  testify  as  an  expert  who  stated  that 
"he  had  been  engaged  in  the  banking  business 
about  five  years,  and  was  more  or  less  experienced 
in  handwriting — that  his  clerks  did  the  most  of  his 
correspondence,  etc.  He  had  little  occasion  to  exer- 

1  Chester  v.  State,  23  Tex.  Ct.  of  App.  583. 


EXPERTS    IN    HANDWRITING.  297 

else  in  comparing  handwriting,  and  did  not  consider 
himself  an  expert — was  never  before  called  to  testify 
in  a  case  as  an  expert;  seldom  had  occasion  in  his 
business  to  compare  handwriting;  thought  he  could 
tell  handwriting  by  comparison;  thought  he  could 
by  comparing  two  written  instruments,  tell  whether 
or  not  they  were  written  by  the  same  person;  did  not 
consider  himself  an  expert  in  comparing  handwrit- 
ing." The  Supreme  Court  of  Missouri  declares 
that  "one  who  does  not  profess  to  be  an  expert  in 
handwriting,  or  wrhose  avocation  in  life  has  not  been 
such  as  to  qualify  him  to  judge  of  handwritings, 
should  not  be  permitted  to  testify  as  an  expert." 

1.  Writing  engravers,  accustomed  accurately  to 
examine  the  formation  of  letters  in  different  hand- 
writings, and   who  have  acquired   skill  from  their 
occupation  of  making  engravings  of  handwritings, 
are  allowed  to  testify  as  experts.3 

2.  So  are  tellers4  and   cashiers5  of  banks,  who 
have  acquired  skill  in  passing  on  the  genuineness  of 
signatures  to  notes  and  checks.     And  in  general  any 
officer  of  a  bank  whose  business  it  is  to  examine 
papers  with  a  view  of  detecting  alterations  and  eras- 
ures, and  ascertaining  genuine  from  spurious  writ- 
ings, is  an  expert  in  questions  pertaining  to  hand- 
writing.6 

3.  A  clerk  in  a  post-office,  accustomed  to  the  in- 

1  Heacock  v.  State,  13  Tex.  Ct.  of  App.  97, 130. 

2  State  v.  Tompkins,  71  Mo.  613. 

3  Spear  v.  Bone,  cited  in  5  A.  &E.  709;  Regina  v.  Williams,  8  C.  &  P. 
34;  Norman  v.  Morell,  4Vesey  Ch.  768;  Turnbull  v.  Dodds,6  D.  (S.  C.) 
901. 

<  Speiden  v.  State,  3  Tex.  Ct.  of  App.  159. 

«  Dubois  v.  Baker,  30  X.  Y.  355,  361 ;  People  v.  Hewitt,  2  Parker's  Cr. 
Cas.  20;  State  v.  Phair,  48  Vt.  366,  369;  Lyon  v.  Lyman,  9  Conn.  59,60; 
Murphy  v.  Hagerman,  Wright  (Ohio),  203. 

6  Pate  v.  People,  3  Gilm.  (111.)  644,  659. 


298  EXPERT    TESTIMONY. 

spection  of  franks  for  the  detection  of  forgeries,  is 
deemed  to  possess  the  qualifications  of  an  expert.1 

4.  A   book-keeper   or   cashier  of  a  commercial 
house  who  has  had  experience  in  the  examination  of 
handwriting  to  determine  its  genuineness  has  been 
held  competent  to  testify  as  an  expert.2 

5.  A  writing  master  has  testified  as  an  expert, 
the  question  being  whether  a  writing  was  in  a  nat- 
ural or  simulated  hand.3 

6.  A  sheriff  of  a  county4  and  a  county  clerk,5 
each  having  been  accustomed  to  pass  on  the  genu- 
ineness of  signatures,  have  been  permitted  to  testify 
as  experts  on  the  subject. 

7.  A  lawyer  has  been  held  competent  to  testify 
as  an  expert,  he  having  stated  on  his  preliminary 
examination  that  he  had  occasion  to  examine  hand- 
writing with  a  view  to  comparison  of  writings,  that 
he  had  been  called  to  the  stand  as  a  witness  in  re- 
gard to  them,  a  good  many  times;  that  he  had  never 
made  a  business  of  criticising  writing,  but  had  been 
accustomed  to  do  it,  and  supposed  he  could  identify 
handwriting  pretty  well.6 

§  126.  Disqualification  of  Expert  Arising  from 
Bias. — In  a  case  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  South  Carolina  the  govern- 
ment called  as  an  expert  in  handwriting  a  post-office 
inspector.  It  appeared  on  the  preliminary  examin- 
ation concerning  his  qualifications  that  he  had  been 
detailed  by  the  post-office  department  to  examine 
into  and  collect  the  facts  of  the  case;  that  he  had 

1  Kevett  v.  Braham,  4  Term,  49. 

2  State  v.  Ward,  39  Vt.  225. 

3  Moody  v.  Rowell,17  Pick.  (Mass.)  490. 

4  Yates  v.  Yates,  76  X.  C.  142. 

5  State  v.  Phair,  48  Vt.  366.  :560. 
«  State  v.  Phair,  48  Vt.  366,  369. 


|>N   WHAT  SUBJECTS  EXPERTS  CAX  TESTIFY.         299 

hunted  up  the  testimony,  and  had  busied  himself 
in  the  inception  and  prosecution  of  the  case.  The 
defendant  thereupon  objected  to  his  competency, 
and  the  objection  was  sustained,  the  court  saying  : 
"  Where  the  person  called  to  testify  as  an  expert  is 
one  occupying  the  relation  to  the  case  which  this 
witness  does — saturated  with  bias  against  the  de- 
fendant, honestly  convinced  of  his  guilt,  and,  in  the 
conscientious  discharge  of  his  duty,  seeking  to  bring 
him  to  punishment — he  can  afford  the  jury  no  effi- 
cient aid  in  coming  to  a  fair  and  impartial  conclu- 
sion. His  evidence  as  an  expert  to  the  point  indi- 
cated will  not  be  admitted."1 

§  127.  Upon  what  Subjects  Experts  in  Handwrit- 
ing can  Testify. — Experts  in  handwriting  are  permit- 
ted to  express  an  opinion  on  the  question  whether  a 
writing  is  in  a  natural  or  simulated  hand;2  whether  it 
appears  more  cramped  and  confined  than  the  hand 
which  the  writer  usually  wrote;3  and  as  to  which  of 
two  instruments  exhibits  the  greater  ease  and  facility 
of  writing.*  They  have  been  permitted  to  testify  that 
a  certain  writing  bore  the  appearance  of  having  been 
touched  by  a  pen  a  second  time,  as  if  done  by  some 
one  attempting  to  copy  or  imitate  the  handwriting 
of  another.5  And  on  an  indictment  for  uttering  a 
forged  will,  which,  together  with  writings  in  support 

1  United  States  v.  Mathias,  36  Fed.  Rep.  892,  894. 

1  Queen  v.  Shepherd,  1  Cox  Cr.  Cas.  237 ;  Goodtitle  v.  Braham,  4  Term, 
497;  Rex  v.  Cator,  4  Esp.  117;  Spear  v.  Bone  (M.  S.),  cited  in  5  A.  & 
E.  709;  Reilly  v.  Rivett,  1  Cases  in  Eng.  Ecels.  Cts,  43,  note  a;  Moody 
v.  Rowell,  17  Pick.  (Mass.)  490;  Commonwealth  v.  Webster,  5  Cush. 
(Mass.)  295;  Burdick  v.  Hunt,  43  Ind.  381 ;  Mile*  v.  Loomis,  17  Hun  (X. 
Y.).  372;  Goodyear  v.  Vosburgh,  63  Barb.  (X.  Y.)  154;  People  v.  Hew- 
itt, Parker  Cr.  Cas.  20.  See  p.  303. 

3  Dubois  v.  Baker,  30  X.  Y.  355,  362. 

4  Demerritt  v.  Randall,  116  Mass.  331. 
*  Spear  v.  Bone,  supra. 


300  EXPERT   TESTIMONY. 

of  it,  it  was  suggested  had  been  written  over  pencil 
marks  which  had  been  rubbed  out,  the  testimony  of 
an  engraver  was  received,  who  had  examined  the 
paper  with  a  mirror  and  traced  the  pencil  marks.1 

It  has  been  held  competent  to  ask  an  expert 
whether  certain  parts  of  a  writing  could  have  been 
made  with  a  pen,  but  not  whether  it  could  have 
been  made  with  an  instrument  which  was  found 
in  the  possession  of  the  defendant.2  So  an  expert 
may  testify  whether  two  documents  were  written 
with  the  same  pen  and  ink,  and  at  the  same  time.3 
And  when  it  is  alleged  and  denied  that  the  body 
and  signature  of  an  instrument  are  in  the  same 
handwriting,  he  may  be  asked  to  express  an  opinion 
whether  the  two  parts  were  written  by  the  same  per- 
son.4 

Where  one  writing  crosses  another,  an  expert  may 
testify  which  in  his  opinion  was  written  first.5  His 
opinion  has  also  been  taken  on  the  question,  whether 
certain  words  on  a  paper  shown  him,  were  written 
before  or  after  the  paper  was  folded.6  And  the  judi- 
cial committee  and  lords  of  the  privy  council  have 
called  an  expert  for  the  purpose  of  obtaining  his 
opinion  as  to  whether  a  circumflex  line,  surround- 
ing the  names  of  the  witnesses  to  a  will,  was  made 
before  or  after  the  signature.7 

In  consequence  of  a  deed  having  been  drawn  up 


1  Regina  v.  Williams,  8  Car.  &  P.  34. 

2  Commonwealth  v.  Webster,  5  Gush.  (Mass.)  295. 

3  Fulton  v.  Hood,  34  Pa.  St.  365;  Quinsigmond  Bank  v.  Hobbs,  11 
Gray  (Mass.),  250.    See  p.  304. 

*  Reese  v.  Reese,  90  Pa.  St.  89. 

5  Cooper  v.  Bockett,  4  Moore  P.  C.  433;  Duboisv.  Baker,  30  X.  Y.  355. 

6  Bacon  v.  Williams,  13  Gray  (Mass.),  525. 

7  Cooper  v.  Bockett,  4  Moore  P.  C.  433. 


OX  WHAT  SUBJECTS  EXPERTS  CAN  TESTIFY.         801 

"in  an  unusual  and  slovenly  manner,  and  so  as  at 
first  sight  to  cause  doubt  as  to  the  genuineness  of  a 
part  of  it,"  Chief  Justice  MEREDITH  ordered  an  ex- 
pertise in  the  Quebec  Court  of  Review,  and  this 
course  was  not  disapproved  of  either  by  the  Court  of 
Appeals  or  the  Lords  of  the  Privy  Council.1 

It  is  well  settled  that  expert  testimony  is  admis- 
sible upon  the  question  of  the  alteration"  or  erasure 
of  writings.3  A  holograph  will,  in  which  alterations 
and  interlineations  appeared,  has  been  admitted  to 
probate  upon  the  testimony  of  an  expert,  that  in  his 
opinion,  the  alterations  were  written  at  the  same 
time  as  the  rest  of  the  will.*  An  expert  accustomed 
to  the  use  of  the  microscope,  having  examined  the 
note  in  question  through  that  instrument,  has  been 
allowed  to  testify  that  the  word  "year"  in  the  body 
of  the  note  had  been  erased,  and  the  word  "day" 
written  upon  the  erasure.5  So  an  expert  has  been 
permitted  to  express  an  opinion,  that  a  note  has  been 
altered  by  the  substitution  of  one  figure  for  another,' 
and  whether  certain  words  in  a  writing  had  been 
cancelled.7 

An  engraver  has  been  examined  as  to  an  illegible 
writing,8  and,  in  general,  the  testimony  of  experts  is 
admissible  whenever  the  writing  is  obscure  and  dim- 


1  See  Hainel  v.  Panel,  3  Quebec  Law  R.  173, 175. 

2  Moye  v.  Herndon,  30  Miss.  US;  Vinton  v.  Peck,  14  Mich.  287;  Pate 
v.  The  People,  3  Gilm.  (111.)  644. 

8  Edelin  v.  Sander's  Exr.  8  Md.  118;  Yates  v.  Waugh,  1  Jones  (X.C.) 
Law,  483.  See  Swan  v.  OTallon,  7  Mo.  231 ;  Wagner  v.  Jacoby,  2«;  M<>. 
530. 

«  In  the  Goods  of  Hindmarch,  1  P.  &  M.  307. 

5  Dubois  v.  Baker,  30  N.  Y.  355. 

6  Nelson  v.  Johnson,  18  Ind.  329. 

7  Beach  v.  O'Riley,  14  W.  Va.  55. 

8  Norman  v.  Morell,  4  Vesey  Ch.  768. 


302  EXPERT    TESTIMONY. 

cult  to  be  deciphered.1  If  the  writing  is  ancient,  an 
expert  may  state  his  belief  as  to  the  probable  period 
at  which  it  was  written.2  But  in  a  recent  case 
in  Nebraska  the  opinion  is  expressed  that  the 
question  of  the  age  of  a  written  paper  is  not 
one  of  science  or  skill  so  as  to  make  admissi- 
ble the  opinion  of  an  expert  upon  its  mere 
inspection.3  The  judge  writing  the  opinion  of  the 
court  in  that  case  says  :  "  Whatever  reading,  exam- 
ination, and  reflection  I  have  been  able  to  give  to 
the  case,  has  led  me  to  the  conclusion  that  it  does  not 
present  a  question  of 'science,  skill,  or  trade,  nor  one 
of  a  like  kind.  In  other  words,  I  do  not  think  that 
any  amount  of  science,  study,  or  skill  would  enable 
a  person  by  mere  inspection,  to  judge  or  testify  of 
the  age  of  handwriting  with  that  accuracy  necessary 
to  its  value  or  safety  in  judicial  proceedings.  The 
appearance  of  a  written  paper,  some  years,  or  even 
months  old,  will  depend  greatly  upon  the  color, 
kind  and  quality  of  the  ink  used,  and  greatly  upon 
the  receptacle  or  place  where  the  paper  has  been 
kept,  whether  excluded  from  the  air  or  sunshine, 
whether  in  a  dry  or  damp,  hot  or  cool  place,  and 
other  conditions,  the  knowledge  of  which  must  be 
derived  from  sources  other  than  inspection.  Again, 
there  is  no  recognized  science  or  trade  in  which  it 
can  be  said  to  be  necessary  that  persons  engaged  in 
it  should  be  skilled  in  detecting  the  age  of  writings 
by  inspection.  The  science  of  the  law,  perhaps, 


'Masters  v.  Masters,  1  P.  Win.  425;  Stone  v.  Hubbard,  7  Cush. 
(Mass.)  595.  It  is  a  question  for  the  jury  and  not  for  the  court  to  deci- 
pher illegible  letters  or  figures  :  Armstrong  v.  Burrows,  6  Watts.  266, 268. 
»  2  Tracy  Peerage  Case,  10  01.  &  Fin.  154;  Doe  v.  Suckermore,  5  Ad.  & 
Ellis,  703,  718.  See  section  128;  also  pp.  307,  309. 

3  Cheney  v.  Dunlap,  20  Xeb.  265,  271,  (1886). 


ON  WHAT  SUBJECTS  EXPERTS  CAN  TESTIFY.         303 

comes  nearer  to  it  than  any  other,  and  the  instances 
in  which  it  becomes  necessary  or  even  useful  that 
the  legal  practitioner  should  possess  such  skill  are 
very  rare."  It  has  been  held  that  an  expert 
could  not  express  an  opinion  that  certain  words 
were  interpolated  into  a  written  agreement  after 
the  signature  was  affixed,  if  such  opinion  was 
founded  on  the  situation  and  crowded  appearance 
of  the  words.1  And  how  much  a  man  can  improve 
his  handwriting  in  a  short  time,  is  not  a  subject  for 
the  testimony  of  experts.  It  has  been  held,  there- 
fore, improper  to  ask  an  expert  whether  a  man  could, 
within  a  short  time,  so  improve  his  handwriting,  as 
shown  by  the  standard  signatures  of  the  testator,  as 
to  make  a  signature  of  as  good  a  handwriting  as  that 
of  the  will.2 

When  a  plaintiff,  in  a  proceeding  to  cancel  the 
deed,  alleged  that  while  drunk  he  was  induced  by 
the  fraudulent  representations  of  the  defendant  to 
make  him  a  deed  for  land,  the  defendant  saying  it 
was  only  an  arbitration  bond,  an  expert  was  allowed 
to  state  whether  there  was  aiw  difference  between 
two  signatures  of  the  plaintiff — the  one  to  the  deed 
in  question  and  the  other  an  affidavit  filed  in  the 
cause.*  Expert  testimony  is  admissible  as  to  the 
characteristics  of  different  signatures,4  and  as  to 
whether  certain  signatures  presented  the  appearance 
of  ' 'simulated  imitations." 

In  a  case  in  Texas  an  expert  made  an  imitation 
or  copy  of  the  signature  of  the  person  whose  signa- 

1  Jewett  v.  Draper,  6  Allen  (Mass.),  434. 

•  MeKeone  v.  Barnes.  108  Mass.  344,  347. 

*  McLeod  v.  Bullard,  84  N.  C.  r>i:>. 

4  Riordan  v.  Gugerty,  74  Iowa,  688. 

5  Ludlow  v.  Warshiug,  108  N.  Y.520.     See  cases  cited,  p.  299. 


304  EXPERT    TESTIMONY. 

ture  was  in  dispute,  and  the  copy  or  imitation  was 
exhibited  to  and  handed  to  the  jury  along  with  the 
signature  of  that  person,  for  their  inspection  and 
comparison,  in  order  to  show  how  easily  the  name 
could  be  counterfeited  or  forged.  This  evidence  was 
held  to  be  "  wholly  immaterial  and  inadmissible. 
It  could  throw  no  light  on  the  transaction.  It 
might  have  been  perfectly  easy  for  Boyd  (the  ex- 
pert) to  counterfeit  this  signature  or  any  other,  and 
still  that  fact  did  not  tend  in  the  slightest  degree  to 
prove  either  that  defendant  did  it  or  that  he  was 
competent  even  to  do  it." 

In  a  case  in  Illinois  where  an  action  was  brought 
on  a  note,  and  a  pen  and  ink  line  had  been  drawn 
through  the  printed  words,  "if  not  paid  at  matu- 
rity," the  question  being  as  to  the  time  when  this 
line  was  drawn,  it  was  held  that  the  subject-matter 
of  inquiry  required  no  peculiar  habits  or  study,  no 
scientific  language  to  understand  it,  and  that  it  was 
error  to  allow  so-called  experts  to  express  an  opinion 
in  regard  to  it.2 

§  128.  The  Genuineness  of  Writings  as  Deter- 
mined by  the  Nature  of  the  Ink. — Where  a  writing 
purports  to  be  of  ancient  or  recent  date,  the  testi- 
mony of  experts  who  have  made  a  micro-chemical 
examination  of  the  ink  in  which  the  instrument  is 
written,  is  received  to  show  the  nature  of  the  ink, 
whether  it  was  found  fresh  or  old,  and  whether  it 
was  of  such  a  nature  as  to  grow  old  rapidly.3  Such 
testimony  is  also  received  when  the  question  arises 
whether  a  portion  of  the  writing  was  made  at  a  time 
different  from  that  at  which  the  rest  of  the  instru- 

1  Thomas  v.  State,  IS  Tex.  Ct.  of  App.  213,  218. 

2  Collins  v.  Crocker,  15  Brad.  (111.)  107.     See  p.  300. 

3  See  18  Am.  Law  Register  (N.  S.),  273,  282. 


GENUINENESS    OF    WRITINGS.  305 

ment  was  written,  or  Avhether  different  inks  were 
employed.1  Cases  have  been  referred  to  in  the  sec- 
tions immediately  preceding  this,  showing  that  ex- 
perts are  permitted  to  express  an  opinion  as  to  the 
probable  time  at  which  an  instrument  was  written, 
whether  different  parts  of  the  same  instrument  were 
written  at  the  same  time,  and  with  the  same  ink, 
and  where  two  writings  cross  each  other,  as  to  which, 
was  written  first.  In  all  these  inquiries  much  light 
can  be  obtained  from  experts  skillful  in  the  micro- 
chemical  examination  of  inks.  The  importance 
of  such  testimony  is  well  illustrated  by  a  case 
decided  ki  the  Supreme  Court  of  Michigan,  where 
an  exact  similarity  in  the  ink  used  in  execut- 
ing two  different  instruments,  bearing  different 
dates,  was  treated  in  connection  with  other  suspi- 
cious facts,  as  tending  to  indicate  that  both  writings 
were  made  tit  the  same  time.2 

When  two  writings  cross  each  other,  if  the  writ- 
ing was  done  with  a  different  kind  of  ink,  the  ques- 
tion which  was  the  superposed  ink  may  be  easily 
determined  by  wetting  a  piece  of  paper  with  a  com- 

1  Ibid.  288.  A  distinguished  expert  in  the  scientific  investigation  of 
handwriting,  there  gives  an  interesting  account  of  a  ease  of  this  nature, 
which  happened  to  come  within  bis  personal  experience.  It  shows  how 
the  difference  in  inks  may  often  be  ascertained  by  means  of  a  photo- 
graphic copy  of  the  writing.  He  says :  '*The  photograph  is  able  to  dis- 
tinguish shades  of  color  which  are  inappreciable  to  the  naked  eye;  thus 
where  there  is  the  least  particle  of  yellow  present  in  a  color  it  will  take 
notice  of  the  fact  by  making  the  picture  blacker,  just  in  proportion  as 
the  yellow  predominates,  so  that  a  very  light  yellow  will  take  a  deep 
black.  So  any  shade  of  green,  or  blue,  or  red.  where  there  is  an  imper- 
ceptible amount  of  yellow,  will  print  by  the  photographic  process  more 
or  less  black;  while  either  a  red  or  blue,  verging  to  a  purple,  will  show 
more  or  less  faint,  ns  the  case  may  be.  Here  is  a  method  of  investiga- 
tion which  may  b^  very  useful  in  such  cases,  and  which  will  give  no 
uncertain  answer."  In  Goodyear  v.  Voshurgh,  G3  Barb.  (X.  Y.)  154, 
the  differen.-e  in  the  color  of  the  ink  used  was  taken  into  consideration. 

2SlieMouv.  Warner,  4.->  Mich.  658. 

(20) 


306  EXPERT    TESTIMONY. 

pound  which  acts  as  a  solvent  of  ink.  By  pressing 
the  paper  upon  the  writing  in  question,  a  thin  layer 
of  the  superposed  ink  will  be  transferred  to  the  pre- 
pared paper,  thereby  furnishing  an  answer  to  the 
question  propounded.  If  the  same  kind  of  ink  was 
used,  the  case  presents  greater  difficulties,  and  other 
methods  are  resorted  to.  But  to  attempt  to  deter- 
mine the  question,  as  it  is  often  done  by  the  aid  of 
the  eye  or  the  magnifying  glass,  is  said  to  be  no  bet- 
ter than  guess-work.1 

§  129.  The  Qualifications  of  Experts  in  Such 
Gases. — In  all  cases  where  opinions  are  desired  pred- 
icated upon  the  nature  of  the  ink  used,  an  expert 
microscopist  and  chemist,  accustomed  to  the  exam- 
ination of  inks  for  the  purpose  of  determining  the 
nature  and  properties  of  different  inks,  and  the  age 
of  writings,  would  unquestionably  be  competent  to 
express  an  opinion.  But  whenever  the  question  re- 
lates to  the  age  of  a  writing,  an  expert  who  has  sim- 
ply been  in  the  habit  of  studying  the  genuineness  of 
handwriting,  for  the  mere  purpose  of  determining 
whether  it  was  in  the  handwriting  of  the  person  by 

1 18  Am.  Law  Reg.  (N.  S.)  273,  287,  where  a  microscopic  and 
chemical  expert  in  the  examination  of  writings,  says:  "I  took  for 
the  purpose  of  my  experiment  ten  of  the  most  common  kinds  of 
ink  found  in  the  market,  and  drew  a  series  of  lines,  three  in  num- 
ber, with  each  kind  of  ink,  across  a  sheet  of  paper.  This  was 
followed  by  a  similar  series  drawn  diagonally  across  the  first,  thus  form- 
ing a  hundred  points  of  crossing,  and  placing  each  kind  of  ink  above 
and  also  under  all  the  others.  In  thirty-seven  eases  out  of  the  hundred, 
the  eye,  with  or  without  the  glass,  saw  the  under  ink  as  if  it  were  on  the 
surface;  in  forty  cases  nothing  could  be  decided  in  this  respect;  the 
balance  told  the  truth  of  the  matter.  By  the  other  method,  that  is,  by 
the  use  of  the  solvent,  the  true  facts  could  be  made  plain  in  every  one  of 
these  cases.  This  experiment,  as  will  be  seen,  was  made  with  ten  kinds 
of  ink  more  or  le&s  differing  from  each  otht-r  in  color  and  in  chemical 
composition,  and  it  certainly  proves  that  all  such  testimony,  HS  I  have 
said,  has  been  thus  far  no  better  than  guess-work." 


QUALIFICATIONS  OF  EXPERTS  IN  SUCH  CASES.      307 

whom  it  purported  to  have  been  written,  would  not 
be  competent  to  express  an  opinion.1  For  that  in- 
volves a  question  in  a  very  different  department  of 
inquiry,  and  it  is  necessary  that  the  witness  should 
have  made  that  subject  a  matter  of  special  study 
and  investigation.  The  courts  cannot  be  too  care- 
ful in  passing  on  the  qualification  of  witnesses  offered 
as  experts  in  this  particular  line  of  inquiry.2 

In  a  case  decided  in  the  Supreme  Court  of  North 
Carolina  in  the  year  1854,  the  defendant  con- 
tended that  although  the  instrument  declared 
on  was  in  the  handwriting  of  the  testator,  yet 
the  body  of  it  was  a  forgery,  the  original  having 
been  removed  by  some  chemical  process,  and  the 
present  writing  substituted.  To  show  this  a  witness 
was  introduced  who  was  not  a  professed  chemist, 
and  who  knew  little  or  nothing  about  the  science. 
The  trial  court  permitted  him  to  testify  that  he  had 
just  seen  an  experiment  performed,  whereby  legible 
writing  with  ordinary  ink  had  been  erased  and  ex- 
tracted from  a  piece  of  paper  (which  he  then  held 
in  his  hand),  by  the  application  of  certain  chemicals. 
The  object  of  the  testimony  was  to  show  that  ink 
might  be  removed  from  paper  without  injuring  its 
texture.  The  Supreme  Court  held  that  he  was  not 

1  Clark  v.  Bruce,  19  X.  Y.  Sup.  Ct.  (12  Hun),  271,  273.    See,  too,  El- 
lirgwood  v.  Bragg,  52  N.  H.  488;  Cheney  v.  Dunlap,  90  Neb.  265. 

2  "  I  have  repeatedly,"  says  an  expert,  "examined  papers  which  have 
been  made  to  appear  old  by  various  methods,  such  as  washing  with  cof- 
fee, with  tobacco  water,  and  by  being  carried  in  the  pocket  near  the 
person,  by  being  smoked  and  partially  burnt,  and  in  various  other  ways. 
I  have  in  my  possession  a  paper  which  has  passed  the  ordeal  of  many 
examinations  by  experts  and  others,  which  purports  to  be  two  hundred 
years  old,  and  to  have  been  saved  from  the  Boston  fire.    The  handwrit- 
ing is  a  perfect /oc-stmife  of  that  of  Thomas  Addington,  the  town  clerk  of 
Boston,  two  hundred  years  ago,  and  yet  this  paper  is  not  over  two  years 
old."     18  Am.  Law  Reg.  (N.  S.)  273,  289. 


308  EXPERT    TESTIMONY. 

properly  qualified.1  That  the  witness  was  not  qual- 
ified to  give  testimony  as  an  expert  is  entirely  clear, 
but  it  is  somewhat  difficult  to  understand  why  he 
was  not  competent  to  testify  in  the  character  of  an 
ordinary  witness,  to  the  fact  which  he  had  observed, 
namely,  that  certain  effects  followed  the  application 
of  the  chemicals  to  the  paper  in  the  instances  which 
he  witnessed. 

In  a  case  decided  in  the  Supreme  Court  of  Califor- 
nia, the  testimony  showed  that  a  powder,  composed 
of  three  parts  of  hydro-carbonate  of  soda  to  one  part 
of  chlorate  of  potash,  was  found  in  the  baggage  of 
one  of  the  defendants,  wherepon  a  police  officer  was 
permitted  to  testify  that  he  had  used  a  portion  of  the 
powder  found  by  him  in  the  defendant's  baggage, 
in  connection  with  muriatic  acid,  for  the  purpose  of 
extracting  ink  from  paper,  and  that,  with  the  use 
of  a  camel's  hair  brush,  he  had  extracted  the  ink 
from  two  checks— -one  prepared  by  counsel  of  defend- 
ant and  the  other  written  in  imitation  of  the  original 
check  and  with  the  same  kind  of  ink.  That  the  ink 
was  extracted  from  the  body  of  the  checks  without 
affecting  the  signatures,  and  leaving  the  parts  where 
the  ink  was  extracted  perfectly  white,  the  texture  of 
the  paper  being  uninjured.2  Here  the  witness  was 
not  an  expert,  but  he  was  permitted  to  testify  to 
the  facts  which  he  had  observed. 

However,  in  a  case  in  Iowa,  a  witness  who  had 
been  a  teacher  of  penmanship  for  twenty-five  years, 
and  other  witnesses  who  were  attorneys,  all  of  whom 
testified  that  they  were  familiar  with  old  papers  and 
writings,  and  thought  they  were  capable  of  giving  an 

1  Ot«'y  v.  Hoyt,  2  Jones  (N.  C.)  Law,  70. 
4  People  v.  Brotherton,  47  Gal.  395,  402. 


COMPARISON  OF   WRITINGS  IN    JUXTAPOSITION.     309 

opinion  on  the  question,  were  held  competent  to 
testify  as  experts  that  a  certain  instrument  was  of 
recent  origin.  The  court  said:  "We  do  not  think  it 
was  necessary,  to  qualify  a  witness  to  testify  upon 
the  question,  that  he  should  be  a  chemist,  and  have 
knowledge  of  the  chemical  composition  of  ink."1 
§  130.  Comparison  by  Experts  of  Writings  -  in 

Juxtaposition. — There  are  two  distinct  methods  of 
judging  of  the  genuineness  of  handwriting  by  means 
of  comparison.  According  to  one  method,  a  witness 
who  has  acquired  personal  knowledge  of  another's 
handwriting,  by  having  seen  such  person  write,  or 
by  having  received  letters  from  him  in  due  course  of 
business,  may  have  formed  in  his  mind  an  exemplar 
of  the  individual's  handwriting,  so  that,  upon  the 
presentation  of  a  signature,  he  can  say,  by  compar- 
ing it  with  the  exemplar  in  his  mind,  whether  it  corre- 
sponds or  not  with  such  exemplar.  According  to 
the  other  method,  a  witness  who  has  no  personal 
knowledge  of  another's  handwriting,  and  therefore, 
no  exemplar  in  his  mind,  has  before  him  in  juxta- 
position the  writing  in  dispute  with  other  writings 
admitted  or  proved  to  be  genuine,  and  from  a  com- 
parison of  such  writings  expresses  an  opinion  whether 
the  writings  were  made  by  the  same  person.  The 
first  is  the  comparison  which  the  ordinary  witness 
makes,  when  testifying  from  personal  knowledge. 
The  second  is  the  comparison  which  an  expert  makes, 
testifying  without  personal  knowledge. 

In  France,  papers  admitted  to  be  genuine,  and 
writings  of  a  public  nature,  such  as  signatures  writ- 
ten in  the  presence  of  a  notary  or  judge,  or  written 
or  signed  in  a  public  capacity,  are  submitted  to 

1  Eisfield  v.  Dill.  71  lovra,  442,  445.     But  see  p.  302. 


310  EXPERT   TESTIMONY. 

sworn  experts,  appointed  by  the  court,  for  compari- 
son with  the  disputed 'writing.1  In  England,  a  com- 
parison of  handwriting  placed  in  juxtaposition  has 
always  been  permitted  in  the  ecclesiastical  courts.2 
But  in  the  common-law  courts  a  different  rule  was 
adopted,  and  experts  were  not  allowed  in  those  courts 
to, express  an  opinion  based  on  a  comparison  of  hands 
placed  in  juxtaposition,3  until  the  year  1854,  when 
Parliament  passed  an  act,  hereafter  set  lorth,  which 
authorized  such  comparison  to  be  made.  But  in  the 
case  of  ancient  documents,  so  old  that  they  could  not 
be  authenticated  by  living  witnesses,  opinions  based 
on  a  comparison  of  hands  in  juxtaposition  were 
admitted  from  necessity,  even  in  the  common-law 
courts.4 

In  this  country  a  difference  of  opinion  has  pre- 
vailed, and  some  of  our  State  courts  have  denied, 
while  others  have  maintained  the  right  to  introduce 
the  testimony  of  experts  based  on  a  comparison  of 
writings  placed  in  juxtaposition.  But  in  this  ,coun- 
try,  as  in  England,  there  has  been  unanimity  in 
holding  that  such  evidence  is  admissible  in  the  case 
of  ancient  documents.5 

1  Code  de  Procedure  Civile,  Part  I.,  §  2,  tit.  10,  §  200. 

2  Beaumont  v.  Perkins,   1    Phillimore,  78;  Reily  v.  Rivett,  Prerog. 
1792,  1  Cases  in  Eng.  Ecc.  Cts-  43,  note  a;  Heath  v.  Watts  Prerog.  1798, 
Ibid,  note  b;    Saph   v.  Atkinson,  2   Eng.  Ecc.  R.  64,  88,  89;    Machin   v. 
Grindon,  2   Cas.  temp.  Lee,  335;  s.  c.,  2  Addams,  91,  note  a;  1   Ough- 
ton\*  Ordo  Judieioruui,  tit.  225,  De  Comparatione  Litterarum,  etc.,  §§1, 
2,3,  10,11  (1728). 

3  Doe  v.  Suckermore,  5  Ad.  &  Ellis,  703. 

4  Morewood  v.  Wood,  14  East,  327,  note  a;  Rowe  v.  Rawlingg,  7  East, 
282,  note  a;  Taylor  v.  Cook,  8  Price,  650;  Doe  v.  Tarver,  R.  &  M.  141 ; 
Doe  v.  Suckermore,  5  Ad.  &  Ellis,  703,  717,  724.     So  in  Canada,  Thomp- 
son v.  Bennett,  2  Upper  Canada  (C.  P.)  393,  405.  406. 

5  West   v.  State,  22  X.  J.  Law,  241,  242;  Clark  v.  Wyatt,  15   Ind.  271; 
Wilson  v.  Betts,  4  Denio  (N.  Y.),  201;  State  v.  Givens,  5  Ala.  754;  Kirk- 
sey  v.  Kirksey,  41  Ala.  626,  640;  Strothcr  v.  Lucas,  6  Pet.  763.  767. 


STATUTORY  PROVISIONS  CONCERNING  WRITINGS.    311 

We  have  seen  in  the  preceding  section  that  non- 
professional  witnesses,  who  have  personal  knowledge 
of  the  handwriting  of  a  person  whose  signature  is  in 
dispute,  are  competent  to  testify  as  to  their  opinion 
concerning  the  genuineness  of  the  signature.  While 
the  opinions  of  such  witnesses  are  thus  received,  yet 
the  general  rule  does  not  permit  them  to  express  an 
opinion  when  the  opinion  is  based  solely  on  a  compari- 
son of  writings  placed  in  juxtaposition.  In  States 
where  a  comparison  is  allowable  it  can  be  made  by  an 
expert  but  not  by  an  ordinary  witness.1  An  ordinary 
witness,  however,  can  make  a  comparison  of  the 
disputed  signature  with  a  writing  which  he  possesses 
and  which  he  personally  knows  is  the  writing  of  the 
person  whose  signature  is  in  dispute.1  But  in  South 
Carolina  the  witness,  in  order  to  express  an  opinion 
based  on  a  comparison  of  hands,  need  not  be  a  pro- 
fessional expert.3 

§  131.  Statutory  Provisions  Concerning  a  Compar- 
ison of  Writings. — All  dispute  as  to  the  right  to  re- 
ceive the  testimony  of  experts  based  on  a  compari- 
son of  hands  has  been  put  to  rest  in  England,  and 
in  some  of  the  States  of  this  country  by  statutory 
provisions  adopted  for  that  purpose.  These  provis- 
ions differ  somewhat,  some  of  them  being  more  re- 
stricted than  others.  They  are  as  follows  : 

England. — ''Comparison  of  a  disputed  writing 
with  any  writing  proved  to  the  satisfaction  of  the 
judge  to  be  genuine,  shall  be  permitted  to  be  made 
by  witnesses,  and  such  writings,  and  the  evidence 

1  McKay  v.  Lasher,  42  Hun  (N".  Y.),  270:  Mixer  v.  Bennett,  70  Iowa, 
329;    Moons  v.  Crowder,  72  Ala.  79;    Hyde  v.  Woolfolk.  1   Iowa,  159; 
State  v.Owen,  73  Mo.  440;    Williams  v.  Conger,   125   U.  S.  397,  413. 

2  Worth  v.  McConnell,  42  Mich.  473,  475. 

3  Benedict  v.  Flanigan,  18  S.  C.506;  United  States  v.  Marhia?.  30  Fed. 
Rep.  892,  894. 


312  EXPERT   TESTIMONY. 

of  witnesses  respecting  the  same,  may  be  submitted 
to  the  court  and  jury  as  evidence  of  the  genuine- 
ness or  otherwise  of  the  writing  in  dispute." 

California. — "Evidence  respecting  the  handwrit- 
ing may  also  be  given  by  a  comparison,  made  by 
the  witness  or  the  jury,  with  writings  admitted  or 
treated  as  genuine  by  the  party  against  whom  the 
evidence  is  offered  or  proved  to  be  genuine  to  the 
satisfaction  of  the  judge."2 

Georgia. — "Other  writings,  proved  or  acknowl- 
edged to  be  genuine,  may  be  admitted  in  evidence 
for  the  purpose  of  comparison  by  the  jury.  Such 
other  new  papers,  when  intended  to  be  introduced, 
shall  be  submitted  to  the  opposite  party  before  he 
announces  himself  ready  for  trial." 

Iowa. — "Evidence  respecting  handwriting  may  be 
given  by  comparison  made  by  experts  or  by  the  jury, 
with  writings  of  the  same  person  which  are  proved 
to  be  genuine."* 

1  28  and  29  Victoria,  eh.  18,  §  8.    In  1854  a  similar  provision   was 
passed,  but  it  was  confined  in  its  operation  to  the  admission  of  evidence 
in  civil  cases.     17  and  18  Viet.,  ch.  125.     But  in  1865  the  provision   was 
made  applicable  alike  to  civil  and  criminal  cases.    In  reference  to  this 
provision  it  is  laid  down  as  follows:  '-Under  this  statutory  law  it  seems 
clear,  first,  that  any  writings,  the  genuineness  of  which  is  proved  to  the 
satisfaction,  not  of  the  jury,  but  of  the  judge    (see  Eagan  v.  Cowen,  30 
Law  Times,  223,  in  Ir.  Ex.),  may  be  used  for  the  purpose  of  compari- 
son, although  they  may  not  be  admissible  in  evidence  for  any  other  pur- 
pose in   the  cause    (Birch  v.  Ridgway,  1   Fost.  &  Fin.  270;  Crt-sswfll  v. 
Jackson,  2   Fost.  &  Fin.  24) ;  and   next,  that  the   comparison   may   be 
made  either  by  witnesses  acquainted   with  the  handwriting,  or  by  wit- 
nesses skilled  in  deciphering  handwriting,  or,  without  the  intervention 
of  any  Avitnesses  at  all,  by  the  jury  themseves   (Cobbett  v.  Kilminster, 
4  Fost.  &  Fin.  490, per  Martin,  B.),  or  in   the  event  of  there   being   no 
jury,  by  the  court."     2  Taylor's  Evidence,  §  1668.     It  is  to  be  observed, 
however,  that  this  statute  expressly   provides  that  it  is  not  to   apply   to 
Scotland. 

2  Code  of  Civil  Procedure  (1868),  §  1944. 
8  Revised  Code  (1873),  p.  674,  §  3840. 

4  Code  (1873),  §3655;  2  McClain's  Annotated  Code  and  Statutes  (1888), 
p.  1446,  §  4905. 


STATUTORY  PROVISIONS  CONCERNING  WRITINGS.    313 

Nebraska.  —  "Evidence  respecting  handwriting 
may  be  given  by  comparisons  made  by  experts  or 
by  the  jury,  with  writings  of  the  same  person  which 
are  proved  to  be  genuine."1 

New  Jersey. — "In  all  cases  where  the  genuineness 
of  any  signature  or  writing  is  in  dispute,  compari- 
son of  the  disputed  signature  or  writing  with  any 
writing  proved  to  the  satisfaction  of  the  court  to 
be  genuine,  shall  be  permitted  to  be  made  by  wit- 
nesses; and  such  writings,  and  the  testimony  of 
witnesses  respecting  the  same,  may  be  submitted  to 
the  court  or  jury  as  evidence  of  the  genuineness  or 
otherwise  of  the  signature  or  writing  in  dispute; 
provided,  nevertheless,  that  where  the  handwriting  of 
any  person  is  sought  to  be  disproved  by  comparison 
with  other  writings  made  by  him,  not  admissible  in 
evidence  in  the  cause  for  any  other  purpose,  such 
writings,  before  they  can  be  compared  with  the  sig- 
nature or  writing  in  dispute,  must,  if  sought  to  be 
used  before  the  court  or  jury  by  the  party  in  whose 
handwriting  they  are,  be  proved  to  have  been  writ- 
ten before  any  dispute  arose  as  to  the  genuineness 
of  the  signature  or  writing  in  controversy." 

New  York. — "Comparison  of  a  disputed  writing 
with  any  writing  proved  to  the  satisfaction  of  the 
court  to  be  genuine,  shall  be  permitted  to  be  made 
by  witnesses  in  all  trials  and  proceedings,  and  such 
writings,  and  the  evidence  of  witnesses  respecting 
the  same,  may  be  submitted  to  the  court  and  jury 
as  evidence  of  the  genuineness,  or  otherwise,  of  the 
writing  in  dispute." 


1  Compiled  Statutes  (1889),  p.  900,  §  341. 
1  Revison  (1877),  p.  381,  §  19. 
3  Laws  of  1880,  ch.  36,  p.  141. 


314  EXPERT   TESTIMONY. 

Oregon. — "Evidence  respecting  the  handwriting 
may  also  be  given,  by  a  comparison  made  by  a  wit- 
ness skilled  in  such  matters,  or  the  jury,  with  writ- 
ing admitted  or  treated  as  genuine  by  the  party 
against  whom  the  evidence  is  offered." 

Rhode  Island. — "  Comparison  of  a  disputed  writ- 
ing with  any  writing  proved  to  the  satisfaction  of 
the  judge  to  be  genuine,  shall  be  permitted  to  be 
made  by  witnesses,  and  such  writings,  and  the  evi- 
dence of  witnesses  respecting  the  same,  may  be  sub- 
mitted to  the  court  and  jury  as  evidence  of  the  gen- 
uineness, or  otherwise,  of  the  writing  in  dispute." 

Texas. — "It  is  competent  in  every  case  to  give  evi- 
dence of  handwriting  by  comparison,  made  by  ex- 
perts or  by  the  jury;  but  proof  by  comparison  only 
shall  not  be  sufficient  to  establish  the  handwriting 
of  a  witness  who  denies  his  signature  under  oath." 

Wisconsin. — "  Comparison  of  a  disputed  writing, 
with  any  writing  proved  to  the  satisfaction  of  the 
court  to  be  genuine,  shall  be  permitted  to  be  made 
by  witnesses  in  all  trials  and  proceedings;  and  such 
writings  and  the  evidence  of  witnesses  respecting 
the  same  may  be  submitted  to  the  court  and  jury  as 
evidence  of  the  genuineness  or  otherwise  of  the  writ- 
ing in  dispute."4 

In  the  large  majority  of  the  States  this  question 
is  not  regulated  by  statute,  but  is  determined  by  the 
courts  according  to  their  views  of  the  common  law. 

§    132.      Proof  under  the  Statutes. — It  will  be  no- 

1  Hill's  Ann.  Laws  (1887),  vol.  1.,  §  765. 

2  Public  Statutes  (1882),  p.  588,  §  42. 

8  Revised  Statutes  (1879),  Code  of  Grim.  Procedure,  Art.  754.  And 
gee  Heard  v.  State,  9  Tex.  Ct.  of  App.  1,  19;  Phillips  v.  State,  6  Tex. 
Ct.  of  App.  331;  Hatch  v.  St .-itu,  6  76.  381;  Eborn  v.  Zimmerman. 47  Tex. 
503. 

*  Sunborn  &  Berrymm's  Ann.  Stit.  (1889),  vol.  2,  p.  2157,  §  4189a. 


PROOF    UNDER   THE    STATUTES.  315 

ticed  in  reference  to  the  above  statutory  provisions 
that  in  some  it  is  provided  that  the  writing  shall  be 
proved  genuine  "  to  the  satisfaction  of  the  court" 
or  "  of  the  judge,"  while  in  others  the  provision 
simply  is  that  a  comparison  can  be  made  with  writ- 
ings "  proved  to  be  genuine."  Under  this  last  pro- 
vision the  New  York  court  says  it  seems  that  the 
proof  is  addressed  to  the  jury.1  But  we  do  not  so 
understand  it.  In  those  States  where  a  comparison 
of  writings  is  allowed,  independently  of  statutes, 
with  writings  proved  to  be  genuine,  the  question  of 
proof  is  addressed  to  the  court.2  And  we  see  no 
reason  for  any  distinction  between  the  two  classes 
of  cases. 

When  the  statutes  permit  a  comparison  with  any 
writing  proved  to  the  satisfaction  of  the  court  to  be 
genuine,  it  is  evident  that  the  proof  of  genuineness  is 
not  only  addressed  to  the  court,  but  that  it  is  analo- 
gous to  evidence  tending  to  prove  the  competency 
of  one  who  is  called  as  an  expert  and  the  like.  And 
the  New  York  court  has  consequently  held  that  inas- 
much as  the  evidence  is  addressed  to  the  court,  error 
cannot  be  alleged  in  respect  to  it.s  The  manner 
of  proving  the  genuineness  of  the  writing  in  that 
State  seems  to  rest  exclusively  in  the  judgment  of 
the  trial  court.4 

Under  the  code  of  Iowa  allowing  a  comparison 
with  writings  "which  are  proved  to  be  genuine,"  the 
court  has  held  that  a  comparison  could  not  be  made 
with  a  certificate  of  acknowledgment  to  a  mortgage 
purporting  to  be  executed  by  the  person  whose 

1  See  Hall  v.  Van  Vranken.  28  Hun,  403,  406. 

2  See  section  138. 

s  Hall  v.  Van  Vranken,  28  Hun,  403. 

4  McKay  v.  Lasher,  50  Hun,  383;  Pec-k  v.  Callaghan,  95  N.  Y.  73. 


316  EXPERT    TESTIMONY. 

handwriting  was  in  dispute.  And  this  ruling  was 
made  notwithstanding  a  statute  declaring  that 
"every  instrument  in  writing  affecting  real  estate, 
which  is  acknowledged  or  proved  and  certified,  may 
be  read  in  evidence  without  further  proof."  The 
standard  of  comparison  must  be  proved  to  be  genu- 
ine. In  the  course  of  the  opinion  it  is  said  :  "  The 
court  is  not  prepared  to  adopt  the  suggestion  that 
the  standard  writing  may  be  proved  by  witnesses 
who  have  only  seen  the  party  write,  for  this  is,  in 
effect,  fixing  the  standard  by  comparison ;  it  is  sup- 
porting a  probability  by  a  probability.  Two  obvi- 
ous methods  of  proving  the  standard  writing,  are, 
first,  by  the  testimony  of  a  witness  or  witnesses  who 
sawr  the  party  write  it ;  and,  second,  by  the  party's 
admission  when  not  offered  by  himself.  We  do  not 
mean  to  say  that  these  are  the  only  methods,  but 
only  that  the  proof  must  be  positive." 

The  case  above  cited  is  thus  criticised  in  the  Su- 
preme Court  of  New  York  :  "  An  examination  of  the 
opinion  in  that  case  convinces  us  that  it  cannot  be  ta- 
ken as  a  well-considered  expression  of  the  law.  Doubt 
is  therein  expressed,  whether  a  writing  used  for  com- 
'parison  can  He  proved  by  the  testimony  of  witnesses, 
who  have  only  seen  the  party  write;  if  they  have  not 
seen  him  write  that  identical  paper,  and  the  court, 
iu  that  case,  does  not  appreciate  the  reason  of  the 
old  rule  (abolished  by  the  statute  under  considera- 
tion) which  forbade  the  introduction  of  writings, 
merely  for  the  purpose  of  comparison.  "s  And  under 
later  Iowa  decisions  a  writing  is  admissible  as  a 
standard  of  comparison  when  the  paper  is  conceded 
to  be  genuine,  or  is  such  that  the  other  party  is  es- 

1  Hyde  v.  Woolfolk,  1  Iowa,  160. 

8  Hall  v.  Van  Vranken,  28  Hun,  403,  406. 


COMPARISON  BY  EXPERTS  WITH    WRITINGS.         317 

topped  to  deny  it,  or  belongs  to  the  witness,  who  was 
himself  previously  acquainted  with  the  handwriting 
of  the  party,  and  exhibits  the  paper  in  confirmation 
and  explanation  of  his  testimony.1  The  writing  to 
be  used  as  the  basis  of  comparison  should  be  proved 
by  direct  and  positive  evidence.2 

§  133.  Comparison  by  Experts  with  Writings  Ad- 
mittedly Genuine. — We  pass  on  to  consider  the  subject 
of  a  comparison  of  hands  by  experts  in  States  where 
there  is  an  absence  of  statutory  provision  regulating 
the  matter  and  the  subject  is  determined  on  common 
law  principles.  When  the  genuineness  of  a  writing 
is  in  issue  there  seems  to  be  no  valid  objection 
against  allowing  experts  to  examine  and  compare 
the  writing  in  question  with  other  writings,  which 
are  legally  in  evidence  for  some  other  purpose  than 
that  of  being  compared,  and  which  are  conceded  to 
be  in  the  handwriting  of  the  person  who  is  alleged 
to  have  written  the  writing  in  issue,  or  the  genuine- 
ness of  which  he  is  estopped  to  deny.  It  is  all  but 
universally  held  that  a  comparison  may  be  made  of 
the  writing  in  dispute  with  other  writings  of  the 
same  person  already  in  evidence  for  another  purpose, 
as  well  as  with  those  which  are  admitted  by  the 
party  himself  to  be  genuine.  Such  writings  seem 
to  form  an  unobjectionable  basis  of  comparison. 

The  genuineness  of  handwriting,  whenever  called 
in  question  by  the  one  whose  writing  it  purports  to 
be,  must  of  necessity  be  determined  by  comparison 
of  some  sort,  or  by  testimony  based  on  comparison. 
If  the  opinion  of  the  genuineness  of  the  writing  is  not 
based  on  a  comparison  of  it  with  some  other  writing 

1  Wilson  v.  Irish,  G2  Iowa,  260. 
1  Winch  v.  Norman,  65  Iowa,  186. 


318  EXPERT    TESTIMONY . 

in  juxtaposition,  it  must  be  based  on  the  conception 
of  the  handwriting  which  the  witness  has  retained 
in  his  mind.  In  most  cases  it  is  far  more  satisfactory 
to  allow  the  witness  to  compare  the  writing  in  issue 
with  other  writings  of  unquestioned  authenticity 
than  it  is  to  compel  him  to  compare  it  with  the 
standard  which  he  may  have  formed  and  retained 
in  his  mind.  The  comparison  with  the  former 
will  ordinarily  be  more  conducive  to  the  ascertain- 
ment of  the  truth  than  will  the  latter.  And  if  there 
is  a  science  of  handwriting  then  those  who  are  ex- 
perts therein  should  be  allowed  to  express  an  opin- 
ion based  on  comparison  of  the  disputed  writing 
with  others  admitted  to  be  genuine.  The  rulings 
in  the  different  States  where  a  comparison  is  allowed 
irrespective  of  any  statutory  provision  will  now  be 
noticed. 

In  Alabama  experts  may  institute  comparisons 
between  the  disputed  writing  and  those  admitted  to 
be  genuine,  but  the  courts  will  not  permit  extraneous 
papers  to  be  presented  before  the  jury  or  court,  or 
shown  to  a  witness,  as  a  basis  for  comparison,  though 
the  same  are  admitted  to  be  genuine.1 

In  Arkansas  it  seems  that  a  comparison  may  be 
made  with  writings  admitted  to  be  genuine  and  al- 
ready in  the  case.2 

In  Colorado  comparison  may  be  made  with  papers 
belonging  to  the  files  in  the  cause,  or  with  th  ose 
previously  received  in  evidence  and  which  are  ad- 
mitted to  be  genuine.' 

1  Moon  v.  Crowder,  72  Ala.  79,  88;  Bestor  v.  Roberts,  58  Ala.  331; 
Kirksey,  v.  Kirksey,  41  Ala.  626;  4Bishop  v.  State,  30  Ala.  40;  Crist  v. 
State,  21  Ala.  137. 

8  Miller  v  Jones,  32  Ark.  338. 

3  Wilber  v.  Eioholtz,  5  Col.  240,  243. 


COMPARISON  BY  EXPERTS  WITH    WRITINGS.          319 

In  Connecticut  a  comparison  may  be  made  with 
writings  admitted  to  be  genuine.1  And,  as  we  shall 
see  in  a  subsequent  part  of  this  chapter,  the  rule  in 
this  State  allows  comparison  even  with  other  writ- 
ings. 

In    Georgia  a  comparison  of  writings  is  allowed.* 

In  Indiana  experts  may  make  a  comparison  with 
papers  which  ''properly  belong  in  the  case,  and 
which  the  party  is  therefore  estopped  from  denying, 
and  those  that  are  admitted  to  be  genuine."3  That 
court  also  say:  "In  either  case  the  signatures  sought 
to  be  used  in  comparison,  if  not  to  papers  in  the 
cause,  nor  in  evidence,  must  be  admitted  to  be  gen- 
uine, and  the  question  arises  who  shall  make  the 
admission.  The  appellee  insists  that  if  the  maker 
of  the  papers  admit  the  signatures  to  them  to  be 
genuine,  this  is  an  admission  within  the  meaning 
of  the  rule.  We  think  otherwise.  The  admission 
must  be  made  by  the  party  against  whom  the  paper 
is  sought  to  be  used,  whether  he  is  or  is  not  the 
maker  of  the  paper.  A  claim  that  a  signature  is 
genuine  by  a  party  who  seeks  to  use  it,  is  no  admis- 
sion at  all." 

In  Kansas  a  comparison  can  be  made  with  writ- 
ings already  properly  in  evidence,  or  properly  in  the 
case  for  some  other  purpose,  or  with  writings  the 
genuineness  of  which  are  admitted,  and  where  cer- 
tain signatures  are  admitted  by  the  party  to  be  gen- 
uine they  may  be  introduced  in  evidence  for  the 

1  Tyler  v.  Todd,  36  Conn.  218. 

2  Boggus  v.  State,  34  Ga.  275. 

3  Hazzard  v.  Vickery,  78  Ind.  64. 66.     And  see  Chance  v.  Indianapolis, 
etc.  R.  K.  Co.,  32   Ind.  473;    Burdick   v.  Hunt,  43   Ind.  386;    Hu&ton  v. 
Schindler,  46  Ind.  40;  Shorb  v.  Kiiizie,  80  Ind.  500;    Walker  v.  Ste.  le, 
121  Ind.  436. 

«  Shorb  v.  Kinzie,  80  Ind.  500,  502. 


320  EXPERT    TESTIMONY. 

mere  purpose  of  comparison.1     The  comparison  may 
be  made  both  by  experts  and  the  jury.' 

In  Maine  comparison  of  hands  is  allowed;3  and. 
as  will  subsequently  appear,  the  comparison  is  not 
restricted  to  writings  already  in  the  case,  or  which 
are  admitted  to  be  genuine. 

In  Massachusetts  a  comparison  of  handwriting 
has  always  been  held  proper.4  In  this  State  also, 
as  will  subsequently  appear,  the  comparison  is  not 
restricted  to  papers  in  the  case  or  admitted  to  be 
genuine. 

In  Michigan  there  are  several  cases  in  which  it  has 
been  held  that  a  comparison  can  be  made  by  experts 
with  papers  already  in  the  case.5  And  in  a  case  de- 
cided in  1887,  the  court  declared  that  ''comparisons 
of  this  kind  can  only  be  made  with  such  writings 
as  are  legally  in  evidence  for  some  other  purpose 
than  that  of  being  compared."5  But  in  a  recent  case 
the  court  has  held  that  when  the  plaintiff,  whose 
signature  is  in  dispute,  is  shown  on  cross-exam- 
ination certain  signatures  which  he  admits  to  be 
in  his  handwriting,  the  signatures  thus  admitted  by 
him  to  be  genuine  may  be  used  for  purposes  of 
comparison.7  The  court  considered  this  an  excep- 
tion to  the  general  rule  that  comparison  could  only 

1  Macomber  v.  Scott,  10  Kan.  335.     And  see  Joseph  v.  Bank.  17   Kan. 
256;  Abbott  v.  Coleman,  22  Kan.  250;  Ort  v.  Fowler,  31  Kan.  478. 
!  Abbott  v.  Coleman,  22  Kan.  250,  253. 

3  State  v.  Thompson,  SO  Me.  194;  Woodman  v.  Dana,  52  Me.  9. 

4  Hall  v.  Huse,  10  Mass.  39;  Homer  v.  Wallis,  11  Mass.  312:  Moody  v. 
Ro\vell,17  Pick.  490;  Richardson  v.  Newcomb,  21  Pick.  315;  Cabot  Bank 
v.  Russell,  4  Gray,  167:  Commonwealth  v.  Coe,  115  Mass.  481;  Costello 
v.  Crowell,  133  Mass.  352;  s.  C.,  139  Mass.  588. 

*Vinton  v.  Peck,  14  Mich.  287,294;  Worth  v.  McConuell.  42  Mk-h. 
475. 

•  People  v.  Paiker,  67  Mich.  222,  224. 

T  Dietz  v.  Nat.  Bank,  69  Mich.  287.  See  Harvester  Co.  v.  Miller,  72 
Mich.  265. 


COMPARISON  BY  EXPERTS  WITH    WRITINGS.         321 

be  had  with  papers  legitimately  in  the  cause  for 
some  other  purpose.  The  court  said:  ''It  was  open 
to  the  defense  to  use  any  reasonable  test  of  cross- 
examination  of  his  own  acts,  and  if  he  admitted  sig- 
natures which  it  was  claimed  were  identical  in  char- 
acter, that  fact  would  be  of  great  importance.  He 
could  not  be  taken  by  surprise  by  papers  which  he 
admitted  to  be  genuine;  and  it  is  very  manifest  that 
such  admitted  signatures  would  form  the  best  pos- 
sible basis  of  comparison." 

In  Minnesota  comparison  may  be  made  by  experts 
not  only  with  writings  already  in  evidence  for  other 
purposes,  but  it  may  be  made  with  other  writings 
admitted  to  be  genuine,  although  not  in  evidence 
for  other  purposes.1 

In  Mississippi 2  and  Missouri 3  a  like  rule  is  recog- 
nized. 

In  the  latter  State  it  has  been  held,  however,  that 
an  expert  cannot  express  his  opinion  as  to  the  gen- 
uineness of  a  note  sued  on  by  comparing  it  with  the 
signature  of  the  defendant  in  his  plea  of  non  est 
factum.  The  reason  was  that  the  defendant  might 
have  disguised  his  writing  intentionally.* 

In  New  Hampshire  the  comparison  of  hands  is  al- 
lowed, and  as  we  shall  see  subsequently,  is  not  re- 
stricted to  papers  already  in  evidence  for  another 
purpose,  or  to  those  conceded  to  be  genuine.5 

In  New  York,  prior  to  the  enactment  of  the  stat- 
ute already  referred  to,  it  was  held  to  be  competent 

1  Morrison  v.  Porter,  35  Minn.  425. 

2  Wilson  v.  Beauchamp,  50  Miss.  24. 

3  State  v.  Scott,  45  Mo.  302;  State  v.  Clinton,  67  Mo.  380;  Springer  v. 
Hall,  83  Mo.  693;  Rose  v.  First  Nat.  Bank,  91  Mo.  399. 

4  Springer  v.  Hall,  S3  Mo.  693,  697. 

•5  State  v.  Hastings,  53  X.  H.  452;  Bowman  v.  Sanborn,  25  N.  H.  110; 
Reed  v.  Spaulding,  42  N.  H.  Ill,  121;  State  v.  Shinborn,  46  N.  H.  497. 

(21) 


EXPERT   TESTIMONY. 

to  allow  comparison  to  be  made  by  experts  with 
other  specimens  of  the  party's  handwriting,  which 
had  been  admitted  in  evidence  for  other  lawful  pur- 
poses on  the  trial,  but  not  competent  to  introduce 
such  specimens  for  the  sole  purpose  of  comparison.1 
And  in  a  recent  case  in  that  State  where  the  defend- 
ants offered  to  show  by  expert  testimony,  that  the 
note  in  question  and  a  letter  admitted  by  the  plaint- 
iff to  be  in  her  handwriting  were  both  in  the  same 
handwriting,  the  court  held  it  to  be  inadmissible. 
It  said:  ''Comparison  of  handwriting  is  only  admis- 
sible between  the  disputed  writing  in  question  and 
the  genuine  handwriting  of  the  person  purporting 
to  be  the  writer  of  the  disputed  writing." 

In  North  Carolina  an  expert  has  been  allowed  to 
make  a  comparison  of  the  disputed  signature  with  a 
deposition  already  in  evidence,3  but  the  courts  of 
this  State  will  not  allow  a  comparison  of  hands  to  be 
made  by  the  jury.4 

In  Ohio  a  comparison  of  hands  is  allowed,  and  is 
not  restricted  to  papers  already  in  evidence  or  con- 
ceded to  be  genuine.8 

In  South  Carolina  a  somewhat  peculiar  doctrine 
prevails  as  to  a  comparison  of  hands,  and  the  doc- 
trine of  that  State  on  the  subject  is  subsequently 
considered.' 

In  Texas  we  have  seen  that  the  statutes  make  pro- 

1  Miles  v.Loomis,  75N.  Y.  288;  Peck  v.  Callahan,  95  JS".  Y.  73,  75. 

2  Bruyn  v.  Russell,  52  Hun,  17,  21. 

3  Yates  v.  Yates,  76  N.  C.  142. 

4  Fuller  v.  Fox,  101   N.  C.  119;    Tuttle  v.  Rainey,  98  N.  C.  513;  Bur- 
ton v.  Wilkes,  66  X.  C.  604;    Watson  v.  Davis,  7  Jones,  178;    Oteyv. 
Hoyt,  3  Jones,  407;  Outlaw  v.  Hurdle,  1  Jones,  150;  Pope  v.  Askew,  1 
Ired.  16. 

8  Calkins  v.  State,   14  Ohio  St.  222;    Hicks  v.  Person,  19  Ohio,  427: 
Koons  v.  State,  36  Ohio  St.  195. 
6  See  section  135. 


COMPARISON  BY  EXPERTS  WITH  WRITINGS.         323 

vision  for  a  comparison  of  hands  in  criminal  cases, 
but  the  provision  does  not  extend  to  civil  cases. 
The  courts  of  the  State  hold,  however,  that  in  civil 
cases  a  comparison  may  be  made  by  experts  with 
papers  already  in  the  case  and  admitted  to  be  gen- 
uine, or  with  those  the  genuineness  of  which  the 
party  is  estopped  to  deny.1 

In  Vermont  a  comparison  of  hands  is  allowed,  and 
is  not  restricted  to  papers  already  in  evidence,  or 
admitted  to  be  genuine.2  And  such  is  the  rule  in 
Virginia.3 

In  the  Federal  Courts  a  comparison  of  hands  is 
allowed  to  be  made.  The  leading  case  in  the  Su- 
preme Court  of  the  United  States  is  that  of  Strother 
v.  Lucas,'  in  which  the  general  rule  was  stated  to  be 
"that  evidence  by  comparison  of  hands  is  not  ad- 
missible, when  the  witness  has  had  no  previous 
knowledge  of  the  handwriting,  but  is  called  upon 
to  testify  merely  from  a  comparison  of  hands."  But 
the  Supreme  Court  in  Moore  v.  United  States,5  and  in 
Williams  v.  Conger6  recognize  the  principle  that  a 
comparison  can  be  made  in  cases  where  the  paper 
used  as  a  standard  is  admitted  to  be  in  the  handwrit- 
ing of  the  party,  or  where  he  is  estopped  from  de- 
nying it  to  be  so. 

§  134.  Comparison  by  Experts  of  Writings  in  Jux- 
taposition Not  Allowed  in  Some  States. — We  have  seen 
in  the  preceding  section  that  a  comparison  of  the 

1  Kennedy  v.  Upshaw,  64  Tex.  412;  Smyth  v.  Oaswell,  67  Tex.  573; 
Wagoner  v.  Ruply,  69  Tex.  700. 

2  Rowell  v.  Fuller,  59  Vt.  688.    And  see  Sanderson  v.  Osgood.  52  Vt. 
309. 

3  Hanriot  v.  Sherwood,  82  Va.  1. 

4  6  Pet.  763  (1832) . 

3  91  U.S.  270,  (1875). 
6125U.  S.  397,  414,  (1887). 


324  EXPERT  TESTIMONY. 

writing  in  question  with  other  writings  already  in 
the  case,  or  admitted  to  be  genuine,  is  generally 
recognized  in  the  courts  of  this  country.  But  in  a 
few  States  a  comparison  of  writings  in  juxtaposition 
cannot  be  made  by  experts,  opinions  based  on  such 
a  comparison  by  them  being  rigidly  excluded.  Such 
a  principle  is  recognized  in  the  courts  of  Pennsyl- 
vania. The  language  of  that  court  on  this  general 
subject  is  as  follows  : 

"1st.  That  evidence  touching  the  genuineness 
of  a  paper  in  suit  may  be  corroborated  by  a  compar- 
ison, to  be  made  by  the  jury,  between  that  paper  and 
other  well  authenticated  writings  of  the  same  party. 

"  2d.  But  mere  experts  are  not  admissible  to 
make  the  comparison,  and  to  testify  their  conclu- 
sions from  it. 

"  3d.  That  witnesses  having  knowledge  of  the 
party's  handwriting  are  competent  to  testify  as  to 
the  paper  in  suit;  but  they,  no  more  than  experts, 
are  to  make  comparison  of  hands,  for  that  were  to 
withdraw  from  the  jury  a  duty  which  belongs  appro- 
priately to  them. 

' '  4th.  The  test  documents  to  be  compared  should 
be  established  by  the  most  satisfactory  evidence  be- 
fore being  admitted  to  the  jury. 

"  5th.  That  experts  may  be  examined  to  prove 
forgery  or  simulated  writings,  and  to  give  the  con- 
clusions of  skill  in  such  cases  as  have  been  men- 
tioned, and  their  like."  ' 

In  Tennessee  the  courts  appear  to  have  gone  even 
further  and  to  have  held  that  a  comparison  will  not 
be  permitted  to  be  made  either  by  jury  or  witnesses.2 

1  Travis  v.  Brown,  43  Pa.  St.  9,  17, 18.    And  see  Foster  v.  Collner,  107 
Pa.  St.  305 ;  Berryhill  v.  Kirchner,  96  Pa.  St.  489. 
*  Clark  v.  Rhodes,  2  Heisk.  206. 


COMPARISON  BY  EXPERTS  WITH  WRITINGS.         325 

In  Kentucky  a  comparison  by  the  jury,  with  or 
without  the  aid  of  experts,  is  not  recognized.1  The 
Court  of  Appeals  in  the  case  last  cited  make  the 
following  comment  on  the  rule  adopted  in  that  State  : 
"  In  view  of  the  necessarily  uncertain  character  of 
such  expert  testimony,  and  the  fact  that  as  the  media 
of  evidence  are  multiplied  the  chances  of  mistake  are 
increased,  we  regard  this  as  the  correct  rule  ;  but  we 
must  not  be  understood  as  holding  that  an  expert 
may  not  testify  as  to  differences  in  the  letters  or 
words,  or  speak  of  other  facts  as  they  appear  to  him 
upon  the  face  of  the  writing." 

In  Illinois  the  genuineness  of  a  signature  cannot 
be  proved  or  disproved  by  comparing  it  with  another 
signature  admitted  to  be  genuine.2  It  has,  however, 
been  held  in  that  State  that,  on  cross-examination, 
where  the  object  is  not  to  prove  a  signature  by  com- 
parison, but  simply  to.  tell  the  accuracy  of  the  ob- 
servation and  memory  of  the  witness,  it  is  compe- 
tent to  show  him  a  signature  as  to  the  genuineness  of 
which  there  is  no  question,  and  examine  him  in  re- 
spect to  the  genuineness  of  such  signature.3 

In  Maryland  a  comparison  of  hands  is  not  al- 
lowed.4 In  a  recent  case  in  that  State,  where  wit- 
nesses who  had  frequently  seen  the  person  write 

1  Fee  v.  Taylor,  83  Ky.  259,  263  (1885). 

2  Jumpertz  v.  People,  21  111.  375;  Kernin  v.  Hill,  37  HI.  209;  Melvin  v. 
Hodges,  71  111.  422;  Masseyv.  Farmers' Nat.  Bank,   104  111.327,332; 
Snow  v.  Wiggin,  19  111.  App.   542;  Gitchell  v.  Ryan,  24  App.  Ct.  375. 
In  Brobston  v.  Cahill,  64  111.  358,  the  court  undertakes  to  distinguish 
Jumpertz  v.  People,  supra,  and  to  hold  that  comparison  can  be  made  with 
genuine  writings  already  in  the  case  for  another  purpose.    But  in  Jum- 
pertz v.  People  and   in  other  cases  the  papers  sought  to  be  used  as  a 
standard  were  already  in  the  case  for  other  purposes. 

8  Melvin  v.  Hodges,  71  111.  422;  Gitchell  v.  Ryan,  24  App.  Ct.  375. 

4  Smith  v.  Walton,  8  Gill,  86;  Niller  v.  Johnson,  27  Md.  6;  Tome  v. 
Parkersburg,  etc.  R.  R.  Co.,  39  Md.  36,  90;  Herrick  v.  Swomley,  56  Md. 
440. 


326  EXPERT  TESTIMONY. 

were  testifying,  it  was  held  that,  on  cross-examina- 
tion, counsel,  for  the  purpose  of  refreshing  their 
memories,  might  exhibit  to  them  certain  signatures, 
which  the  party  admitted  he  had  written,  and  ask 
them  whether  after  examining  such  signatures  they 
were  still  of  the  opinion  that  the  signature  was  not 
genuine.  This  the  court  said  was  no  infringement 
of  the  rule  against  comparison  of  hands.1 

And  in  New  Jersey  and  Rhode  Island,  prior  to  the 
enactment  of  the  statutory  provisions  already  set 
forth  allowing  a  comparison  to  be  made,  their  courts 
held  a  comparison  of  writings  placed  in  juxtaposi- 
tion to  be  improper.2 

§  135.  Comparison  in  Doubtful  Cases  —  The  In- 
termediate Theory  of  the  South  Carolina  Courts. — 
Between  the  cases  which  allow  a  comparison  to  be 
made  with  writings  either  admitted  or  proven  genu- 
ine, and  those  which  deny  in  any  case  the  right  to 
make  a  comparison,  stands  what  in  South  Carolina 
the  courts  have  called  a  ''medium"  doctrine.  The 
rule  in  that  State  is  that  when  it  is  necessary  to  prove 
the  authenticity  of  a  writing  it  may  be  done  by  the 
testimony  of  one  who  was  present  and  saw  the  writ- 
ing executed,  or  by  the  testimony  of  those  who  are 
acquainted  with  the  writing  of  the  party  in  ques- 
tion, but  a  comparison  of  writings  in  juxtaposition 
is  not  in  the  first  instance  allowed.  If,  however, 
the  proof  adduced  leaves  the  question  of  authentic- 
ity doubtful,  then  proof  by  comparison  will  be  al- 
lowed. The  question  whether  the  evidence  is  so 
doubtful  as  to  admit  this  supplemental  testimony 
must  be  determined  in  the  first  instance  by  the  pre- 
siding judge,  but  the  question  is  not  entirely  of  dis- 

1  National  Bank  v.  Armstrong,  66  Md.  113,  116. 

2  West  v.  State,  22  1ST.  J.  Law,  241, .242;  Kinney  v.  Flynn,  2  R.  I.  319. 


p 


RIGHT  OF  COMPARISON  WITH  WRITINGS.  327 


cretion  with  him,  his  decision  being  subject  to  review 
in  the  appellatq  court.  In  the  language  of  that 
court,  however,  "  the  case  should  be  a  very  strong 
one  and  the  error  of  the  judge  very  patent,"  to  war- 
rant the  court  in  overruling  his  judgment.1  This 
doctrine  seems  peculiar  to  that  State. 

§  136.  The  Bight  of  Comparison  with  Writings 
Proven  Genuine  for  the  Purpose — Denied. — The  de- 
cided weight  of  authority  in  this  country  establishes 
the  principle  that  a  comparison  of  handwriting  by  the 
juxtaposition  of  irrelevant  writings  with  the  one  in 
issue  is  not  permissible  in  cases  where  the  irrelevant 
writing  is  not  admitted  to  be  genuine.  A  writing, 
otherwise  irrelevant,  cannot,  according  to  the  weight 
of  authority,  and  in  the  absence  of  a  statute  provid- 
ing otherwise,  be  proven  genuine  simply  for  purposes 
of  comparison. 

The  objections  to  the  introduction  of  specimens 
of  handwriting  not  admitted  to  be  genuine  and  not 
otherwise  in  the  case,  are  succinctly  stated  by  the 
Supreme  Court  of  Kansas,  and  may  be  repeated  here 
in  this  connection  :  "  The  principal,  if  not  the  only 
objections  urged  against  this  kind  of  evidence  are  as 
follows  :  1st.  The  writings  offered  in  evidence  as 
specimens  may  be  manufactured  for  the  occasion. 
2d.  Fraud  may  be  practiced  in  the  selection  of  the 
writings.  3d.  The  other  party  may  be  surprised  ; 
he  may  not  know  what  documents  are  to  be  pro- 
duced, and  therefore  he  may  not  be  prepared  to  meet 
the  inferences  sought  to  be  drawn  from  them. 
4th.  The  handwriting  of  a  person  maybe  changed 
by  age,  health,  habits/state  of  mind,  position,  haste, 
penmanship,  and  writing  materials.  5th.  The  genu- 

1  Benedict  v.  Flanigan,  IS  S.  C.  506.  And  see  Bowman  v.  Plunkett,  2 
McC.  518;  Bird  v.  Millar,  1  McM.  125;  Bennett  v.  Matthews,  5  S.  C.478. 


328  EXPERT  TESTIMONY. 

ineness  of  the  specimens  of  handwriting  offered  in 
evidence  may  be  contested,  and  others  successively 
introduced,  to  the  infinite  multiplication  of  collateral 
issues,  and  the  subversion  of  justice.  6th.  Juries 
are  too  illiterate,  and  are  not  competent  to  judge  of 
this  kind  of  evidence." 

The  cases  in  which  it  has  been  held  that  such  a 
comparison  is  not  allowable  mayjse  found  in  the 
note  below.2 

1  Macoraber  v.  Scott,  10  Kan.  339.    See,  too,  Miles  v.  Loomis,  75  N. 
Y.  288,  296. 

2  Alabama. — Snider  v.  Burks,  84  Ala.  53;  Morris  v.  Crowder,  72  Ala. 
79;  Kirksey  v.  Kirksey,  41  Ala.  626.    And  see  Little  v.  Beazley,  2  Ala. 
210;  State  v.  Givens,  5  Ala.  750;  Bishop  v.  State,  30  Ala.  40;  Bestor  v. 
Roberts,  58  Ala.  331. 

Arkansas. — In  Miller  v.  Jones,  32  Ark.  338,  it  was  decided  that  papers 
not  already  in  evidence  could  not  be  laid  before  the  jury  for  purposes  of 
comparison. 

Georgia. — Boggins  v.  State,  34  Ga.  278;  Henderson  v.  Hackney,  16  Ga. 
525.  But  in  this  State  such  a  comparison  is  now  authorized  by  statutory 
provision.  . 

Illinois.— Snow  v.  Wiggin,  19  111.  App.  542;  Gitchell  v.  Ryan,  24  111. 
App.  372 ;  Massey  v.  Farmers'  Nat.  Bank,  104  111.  327 ;  Brobston  v.  Cahill, 
64  111.  356;  Jumpertz  v.  People,  21  111.  414;  Kernin  v.  Hill,  37  111.  109. 

Indiana. — Comparison  can  be  made  only  with  papers  otherwise  in  evi- 
dence in  the  case  or  admitted  to  be  genuine.  Hazzard  ,v.  Vickery,  78 
Ind.  64;  Shorb  v.  Kinzie,  80  Ind.  500. 

Kentucky. — Woodward  v.  Spiller,  1  Dana,  ISO;  Bannister  v.Weatherford, 
7  B.  Mon.  269;  Hawkins  v.  Grimes,  13  B.  Mon.  260;  Northern  Bank  v. 
Buford,  1  Duval,  335. 

Maryland. — Herrick  v.  Swomley,  56  Md.  439;  Tome  v.  Parkersburg, 
etc.  R.R.  Co.,  39  Md.  93;  Armstrong  v.  Thurston,  11  Md.  148;  Miller  v. 
Johnson,  27  Md.  6. 

Michigan.— Dietz  v.  Fourth  National  Bank,  69  Mich.  288;  People  v, 
Parker,  67  Mich.  224;  Matter  of  Foster's  Will,  34  Mich.  21 ;  Howard  v. 
Patrick,  43  Mich.  122;  Worth  v.  McConnell,  42  Mich.  473;  First  Na- 
tional Bank  of  Houghton  v.  Robert,  41  Mich.  709;  Van  Sickle  v.  People, 
29  Mich.  64;  Vinton  v.  Peck,  14  Mich.  287. 

Missouri.— Rose  v.  First  Nat.  Bank  of  Springfield,  91  Mo.  399;  State 
v.  Clinton,  67  Mo.  380;  State  v.  Scott,  45  Mo.  302;  Dow  v.  Spenuy,  29 
Mo.  387;  State  v.  Tompkins,  71  Mo.  452;  Corby  v.  Weddle,  57  Mo.  422; 
Springer  v.  Hall,  83  Mo.  693,  697. 

New  Jersey. — By  statute  comparison  of  hands  with  writings  proved 
genuine  is  now  allowed  in  this  State,  but  prior  to  the  enactment  of  the 


RIGHT  OF  COMPARISON  WITH  WRITINGS.  329 

§    137.      The   Right   of   Comparison   with    Writings 
Proven    Genuine    for    the    Purpose — Affirmed. — In  a 

few  States,  however,  the  courts,  irrespective  of  any 
statutory  provision  authorizing  it,  have  allowed  a 
comparison  to  be  made  between  the  writing  in  issue 
and  others  proved  on  the  trial  to  be  genuine  for  the 
express  purpose  of  comparison.  They  have  not  re- 
stricted the  right  of  comparison  to  writings  already 
in  the  case  for  another  purpose,  nor  to  those  con- 
ceded to  be  genuine.1 

statute  the  rulings  of  the  court  were  against  a  comparison  of  hands. 
West  v.  State,  22  X.  J.  Law,  212. 

Neic  York.— la  this  State  also  a  comparison  of  hands  with  writings 
proved  genuine  is  now  allowed  by  statute,  but  before  the  enactment  of 
the|statute  this  was  not  allowed.  Hynes  v.  McDermott,  82  X.  Y.  41; 
Randolph  v.  Laughlin,  48  X.  Y.  457;  Pontius  v.  People,  82  X.  Y.  349; 
Dubois  v.  Baker.  30  X.  Y.  355;  Van  Wyck  v.  Mclntosh,14  X.  Y.  439. 

Pennsylvania. — Comparison  by  experts  is  notallowed.  Fosterv.  Coll- 
ner,  107  Pa.  St.  305;  Berryhill  v.  Kirchner,  96  Pa.  St.  489;  Travis  v. 
Brown,  43  Pa.  St.  12;  Aumick  v.  Mitchell,  82  Pa.  St.  211;  Haycock  v. 
Greup,  57  Pa.  St.  438. 

Rhode  Island.— Kinney  v.  Flynn,  2  R.  I.  319. 

Tennessee. — Fogg  v.  Dennis,  3  Humph.  47;  Kannon  v.  Galloway.  2 
Baxter,  231 ;  Wright  v.  Hessey,  3  Baxter,  42  ;Clark  v.  Rhodes,  2  Heisk.  206. 

Wisconsin. — By  statute  comparison  of  hands  with  writings  proved  gen- 
uine is  now  allowed  in  this  State,  but  prior  to  the  enactment  of  the  stat- 
ute the  decisions  of  the  courts  were  against  a  comparison  of  hands. 
Hazelton  v.  Union  Bank,  32  Wis.  47;  Pierce  v.  Xorthey,  14  Wis.  9. 

Federal  Courts.— Moore  v.  United  States,  91  U.  S.  271 ;  United  States 
v.  Chamberlain,  12  Blatchf.  390;  United  States  v.McMillen,  29  Fed.  Rep. 
•247. 

1  Connecticut.— In  Tyler  v.  Todd,  36  Conn.  223,  the  court  say:  "In 
this  State  we  allow  the  disputed  signature  to  be  compared  with  signa- 
tures admitted  or  proved  to  be  genuine.  The  triers  may  compare  and 
judge  for  themselves,  and  experts  may,  upon  comparison,  give  their 
opinion.  But  the  signature  used  as  a  standard  of  comparison  must  not 
only  be  genuine,  but  must  be  admitted  or  proved  to  be  such  before  it  can 
be  used. "  And  see  Lyon  v.  Lyman,  9  Conn.  56. 

Massachusetts. — Costello  v.  Crowell,  133  Mass.  352 ;  Richardson  v.  Xew- 
comb,  26  Pick.  317;  Moody  v.  Rowell,  17  Pick.  490;  Homer  v.  Wallis,  11 
Mass.  309. 

Maine. — Sweetser  v.  Lowell,  33  Me.  446;  Woodman  v.  Dana,  52  Me.  9. 

Mississippi. — Wilson  v.  Beauchamp,  50  Miss.  24;  Garvin  v.  State,  52 
Miss.  209. 


330  EXPERT  TESTIMONY. 

And  in  some  States  it  is  now  expressly  provided 
by  statutes  that  a  comparison  of  a  disputed  writing 
with  any  writing  proved  to  be  genuine  shall  be  per- 
mitted to  be  made.  It  is  so  provided  in  California,1 
Georgia,*  Iowa,3  Nebraska,4  New  Jersey,5  New  York,6 
Rhode  Island,7  and  Wisconsin.8 

§  138.  Mode  of  Proof  When  Comparison  is  Al- 
lowed with  Writing  Proven  Genuine  for  the  Purpose. 
— In  the  English  statute  it  is  expressly  provided  that 
the  writing  offered  .as  a  standard,  if  not  admitted 
to  be  genuine,  must  be  proved  genuine  to  the  satis- 
faction of  the  court.  And  so  it  is  provided  in  the 
statute  of  California,  of  New  Jersey,  of  New  York 
and  of  Rhode  Island.  But  the  statutes  of  the  other 
States  contain  no  such  provision.  The  question  is 
then  presented  whether  in  such  cases  the  proof  of 
the  genuineness  of  the  instrument  is  addressed  to 
the  court  or  the  jury.  In  New  Hampshire  the 
question  rests  solely  with  the  jury,  and  if  they  de- 
termine that  the  proof  is  insufficient,  it  becomes 
their  duty  to  lay  the  writing,  and  all  the  evidence 
of  the  experts  based  on  its  genuineness  entirely  out 
of  the  case.9  But  elsewhere  the  courts  have  as  a  rule 

New  Hampshire. — State  v.  Hastings,  53  N.  H.  460. 

Ohio.— Bell  v.  Brewster,  44  Ohio  St.  690;  Bragg  v.  Colwell,  19  Ohio  St. 
407;  Koons  v.  State,  36  Ohio  St.  198;  Pavey  v.  Pavey,  36  Ohio  St.  600. 

Vermont.— Adams  v.  Field,  21  Vt.  256;  State  v.  Ward,  39  Vt.  225- 
Rowell  v.  Fuller,  59  Vt.  688. 

Virginia. — Hanriott  v.  Sherwood,  82  Va.  1. 

1  Code  of  Civil  Procedure,  §  1943. 

2  Code,  §  3840  (3787). 

1  McClain's  Ann.  Code,  §  4905. 

4  Compiled  Statutes  (1881),  p.  576,  §  344. 

«Eev.  Stat.,  §  19,  p.  381. 

6  Laws  of  1880,  ch.  36,  p.  141. 

7  Public  Statutes  (1882),  p.  588,  §  42. 

8  Sanborn  &  Berryman  Ann.  Stat.  §  4187. 

9  State  v.  Hastings,  53  X.  H.  452,  461. 


MODE    OF    PROOF.  331 

held  such  proof  to  be  addressed  to  the  court,1  and  the 
decision  of  the  trial  judge  on  the  question  of  the 
admissibility  of  the  writing  as  a  standard  seems  to 
be  final  if  there  is  any  proper  evidence  to  support  it.* 
In  Vermont  it  was  at  one  time  held  that  the  fact  that 
the  court  has  adjudged  the  papers  genuine  does  not 
debar  the  jury  from  ultimately  determining  the  ques- 
tion for  themselves.3  But  a  later  case  seems  to 
adopt  the  contrary  principle.4 

The  general  rule  moreover  is  that  the  proof  of  the 
genuineness  of  the  instrument  thus  offered  must  be 
positive.  It  should  be  proved  either  by  the  admis- 
sion of  the  party  when  the  standard  is  not  offered  by 
himself,  or  else  by  the  testimony  of  persons  who 
testify  directly  and  positively  to  having  seen  the 
party  write  the  paper.5  This  was  the  rule,  too,  in 
the  English  ecclesiastical  courts,  where  the  maxim 
was:  Testis  qui  poterint  deponere,  quod  viderunt  tes- 
tatore/n  subscibentem  hujus  modi  scriptis,  etc.* 

As  the  Supreme  Court  of  Massachusetts  has  ex- 
pressed it,  the  genuineness  of  a  writing,  to  be  used  as 
a  standard  of  comparison,  "must  be  shown  beyond 
a  doubt."7 

1  Bragg  v.  Colwell,  19  Ohio  St.  412;  State  v.  Ward,  39  Vt.  225;  Row- 
ell  v.  Fuller,  59  Vt.  688. 

2  State  v.  Thompson,  80  Me.  194;  Commonwealth  v.  Coe,115  Mass.  504; 
Costello  v.  Crowell,  133  Mass.  352;  Costello  v.  Crowell,  139  Mass.  590; 
Xunes  v.  Perry,  113  Mass.  276. 

3  State  v.  Ward,  39  Vt.  225. 

<  Rowell  v.  Fuller,  59  Vt.  688. 

5  Hyde  v.  Woolfok,  1  Iowa,  159;  Pavey  v.  Pavey,  30  Ohio  St.  600; 
Calkins  v.  State,  14  Ohio  St.  222,  228;  Bragg  v.  Colwell,  19  Ohio,  412; 
Eborn  v.  Zimpleman,  47  Tex.  503,  518;  Koons  v.  State,  36  Ohio  St.  195 
199;  Cohen  v.  Teller,  93  Pa.  St.  123, 128. 

6Oughton's  Ordo  Judicioruin,  tit.  225;  De  Comparatione  Litterarum, 
§  3 ;  Beaumont  v.  Perkins,  1  Phillimore,  78. 

"  Martin  v.  Maguire,  7  Gray,  177.  And  see  Baker  v.  Haines,  6  Wbar- 
ton  (Pa.),  291 ;  De  Pue  v.  Place,  7  Pa.  St.  429. 


332  EXPERT  TESTIMONY. 

And  the  court  in  the  case  last  cited  held  that  it 
could  not  be  shown  by  producing  a  paper  which  had 
been  witnessed,  and  then  proving  the  handwriting  of 
the  subscribing  witness,  upon  due  proof  being  made 
that  such  witness  resided  out  of  the  State.  So  the 
same  court  in  a  subsequent  case  has  held  that  let- 
ters received  from  the  testator  in  answer  to  letters 
to  him  could  not  be  received  as  standards.1  Where 
a  receipt  was  offered  as  a  standard,  and  the  witness 
testified  that  the  defendant  gave  him  a  receipt  that 
looked  very  similar  to  the  one  offered,  but  could  not 
positively  say  that  it  was  the  identical  one,  the  Su- 
preme Court  of  Ohio  held  the  proof  too  uncertain  to 
admit  of  the  reception  of  the  paper.2 

§  139.  Expert  should  have  before  Him  in  Court 
the  Writings  Compared. — The  rule  is  that  an  expert 
in  handwriting,  when  speaking  as  a  witness  only 
from  a  comparison,  should  have  before  him  in  court 
the  writings  compared.8  The  reason  being  that  their 
presence  is  essential  to  an  intelligent  examination  in 
chief,  as  well  as  to  an  intelligent  cross-examination; 
nor  can  there  be  any  fair  means  of  meeting  the  testi- 
mony of  the  witness  by  that  of  other  witnesses,  un- 
less the  writings  upon  which  the  opinion  of  the  ex- 
pert is  based  are  in  court  to  be  presented  to  other 
experts  for  their  opinion.  But  where  the  original 
writing  is  lost,  and  the  loss  has  been  clearly  proved, 
the  opinion  of  an  expert  has  been  received  as  to  the 
genuineness  of  the  signature  to  the  lost  instrument, 
he  having  examined  the  signature  prior  to  its  loss, 
and  compared  his  recollection  of  such  signature  with 

1  McKeone  v.  Barnes,  108  Maps.  344. 
2Pavey  v.  Pavey,  30  Ohio  St.  600. 

8Haynes  v.  McDermott,  82  N.Y.41;  Woodman  v.  Dana,  52  Me.  9 ; 
Spottiswood  v.  Weir,  66  Cal.  525,  529. 


COMPARISON  WITH  PHOTOGRAPHIC  COPIES.         333 

the  admitted  genuine  signature  of  the  same  person, 
on  papers  already  in  the  case.1  And  an  expert  has 
been  allowed  to  testify  that  entries  upon  hotel  regis- 
ters, which  he  had  seen  and  examined,  were  in  the 
handwriting  of  the  person  who  wrote  certain  other 
signatures,  which  were  produced  and  proved  or  ad- 
mitted to  be  genuine,  although  the  entries  were  not 
before  the  jury,  the  registers  having  been  destroyed 
by  the  person  whose  signature  was  in  question,  for 
the  purpose  of  suppressing  the  evidence.2  So  where 
the  State,  upon  an  indictment  for  forgery,  was  una- 
ble to  produce  the  check  alleged  to  have  been  forged 
by  the  prisoner,  an  expert,  called  by  the  State,  and 
who  had  seen  the  alleged  forged  check  several  months 
previously,  was  permitted  to  testify  as  to  the  genu- 
ineness of  the  signature,  a  genuine  signature  of  the 
accused  having  been  shown  on  the  trial.* 

§  140.  Comparison  with  Photographic  Copies. — 
It  is  well  settled  that  for  certain  purposes  photo- 
graphs may  be  received  in  evidence.  Thus,  when- 
ever it  is  important  that  the  locus  in  quo  should 
be  described  to  the  jury,  it  is  competent  to  intro- 
duce in  evidence  a  photographic  view  of  it.4  And 
in  cases  where  questions  relating  to  the  identity 
of  persons  have  been  raised,  photographs  have  like- 
wise been  held  admissible.5 

So  in  an  action  to  recover  damages  for  assault  and 

1  Abbott  v.  Coleman,  21  Kan.  250;  Koons  v.  State,  36  Ohio  St.  195. 

4  State  v.  Shinborn,  46  X.  H.  497. 

8  Koons  v.  State,  36  Ohio  St.  195. 

4  Barker  v.  Perry,  67  Iowa,  146;  Locker  v.  Sioux  City,  etc.  R.  R.  Co., 
46  Iowa,  109;  Dyson  v.  X.  Y.,  etc.  R.  R.  Co.,  57  Conn.  9;  Bliss  v.  John- 
son, 76  Cal.  597 ;  People  v.  Buddensieck,  103  X.  Y.  487 ;  Church  v.  City 
of  Milwaukee,  31  Wis.  513;  Randall  v.  Chase,  133  Mass.  210.  See  Peo- 
ple's, etc.  R.  R.  Co.  v.  Green,  56  Md.  84,  94. 

g  Brooke  v.  Brooke,  60  Md.  529;  Udderzook  v.  Commonwealth,  70 
Pa.  St.  340;  Marion  v.  State,  20 Neb.  233;  Ruloff  v.  People,  45  X.  Y.213. 


334  EXPERT  TESTIMONY. 

battery  committed  with  a  rawhide  the  plaintiff 
has  been  allowed  to  introduce  a  ferrotype  of  his 
back  taken  three  days  after  the  injury,  the  person 
taking  the  same  having  testified  that  it  was  a 
correct  representation.1 

The  question  arises  whether  this  principle  is  ex- 
tended to  the  admission  of  photographic  copies  of 
writings  so  that  they  may  be  used  for  the  purpose 
of  a  comparison  of  hands.  That  they  may  be  used 
under  certain  circumstances  will  appear  as  we  pro- 
ceed. 

1 .  It  will  be  observed,  however,  that  photographic 
copies,  like  all  other  copies,  are  merely  secondary 
evidence,  and  cannot  be  used  as  equivalent  to  pri- 
mary evidence.  Thus,  in  a  case  in  Texas,  where  an 
attempt  was  made  to  introduce  in  evidence  the  opin- 
ion of  a  witness,  living  in  another  State,  as  to  the 
genuineness  of  a  disputed  handwriting,  the  opinion 
being  based  on  a  photographic  copy  of  the  instru- 
ment in  dispute  attached  to  the  interrogatories,  in 
support  of  the  admissibility  of  the  evidence  it  was 
urged  that  the  court  should  take  judicial  notice  that 
the  photographic  process  secured  a  mathematically 
exact  reproduction  of  the  original,  and  that,  there- 
fore, evidence  as  to  the  handwriting  of  such  a  copy 
was  as  satisfactory  as  though  it  referred  to  the  orig- 
inal. The  conclusion  reached  by  the  court  was 
that  photographic  copies  of  instruments  sued  on 
could  only  be  used  as  secondary  evidence,  and  re- 
jected the  testimony  on  the  ground  that  no  founda- 
tion had  been  laid  for  it.2 

The  Supreme  Court  of  Michigan,  speaking  of  this 

1  Reddin  v.  Gates,  52  Iowa,  210. 

2  Eborn  v.  Zimpelman,  47  Tex.  503. 


COMPARISON  WITH  PHOTOGRAPHIC  COPIES.         335 

kind  of  evidence  in  the  Matter  of  Alfred  Foster's 
Will,1  decided  in  1876,  said:  "  If  the  court  had  per- 
mitted photographic  copies  of  the  will  to  be  given  to 
the  jury  with  such  precautions  as  to  secure  their 
identity  and  correctness,  it  might  not,  perhaps,  have 
been  error.  Nevertheless,  it  is  not  always  true  that 
every  photographic  copy  would  be  safe  on  any  in- 
quiry requiring  minute  accuracy.  Few  copies  can 
be  so  satisfactory  as  a  good  photograph,  but  all  artists 
are  not  competent  to  make  such  pictures  on  a  large 
scale,  and  all  photographs  are  not  absolutely  faith- 
ful resemblances.  It  is  quite  possible  to  tamper 
with  them,  and  an  impression  which  is  at  all  blurred 
would  be  very  apt  to  mislead  on  questions  of  hand- 
writing where  forgery  is  claimed.  Whether  it  would 
or  would  not  be  permissible  to  allow  such  documents 
to  be  used  their  use  can  never  be  compulsory.  The 
original,  and  not  the  copy,  is  what  the  jury  must 
act  upon,  and  no  device  can  be  properly  allowed  to 
supersede  it.  Copies  of  any  kind  are  merely  second- 
ary evidence,  and  in  this  case  they  were  intended 
to  be  used  as  equivalent  to  primary  evidence  in  de- 
termining the  genuineness  of  the  primary  docu- 
ment.' '  And  in  a  subsequent  case  in  the  same  court 
this  ruling  was  adhered  to  and  photographic  copies 
were  held  inadmissible,  the  court  saying:  "No 
authority  seems  to  justify  the  proof  of  the  handwrit- 
ing of  obtainable  originals  by  any  species  of  imita- 
tion or  copy," 

In  a  case  where  the  original  papers  were  on  file  in 
the  War  Department,  and-  could  not  be  removed 
without  public  detriment  and  inconvenience,  Mr. 
Justice  BRADLEY  hold  that  photographic  copies  could 

1  34  Mich.  23. 

2  Maclean  v.  Sciipps,  r>2  Mich.  214,  219. 


336  EXPERT  TESTIMONY. 

be  received  as  being  the  best  evidence  that  the  case 
admitted  of.1 

The  right  to  make  a  comparison  with  photographic 
copies  of  handwriting  has  been  denied  in  Maryland/ 
but  the  force  of  the  case,  as  an  authority  on  the 
point  we  are  considering,  is  destroyed  by  the  fact 
that  a  comparison  of  hands  is  not  permitted  in  that 
State,  the  old  English  rule  being  still  adhered  to. 

2.  But  when  the  use  of  photographic  copies  is 
not  objectionable  as  being  an  attempt  improperly  to 
use  secondary  evidence  as  equivalent  to  primary 
evidence,  magnified  photographic  copies  of  the 
writing  in  dispute  and  of  admitted  genuine  writ- 
ings of  the  same  person  have  been  received  in  evi- 
dence, competent  preliminary  proof  having  been 
made  that  the  copies  were  accurate  in  all  re- 
spects, except  as  to  size  and  coloring.3  In  the  case 
cited  above  it  is  said  :  "  They  (the  photographic 
copies)  were  capable  of  affording  some  aid  in  com- 
paring and  examining  the  different  specimens  of 
handwriting  which  were  exhibited  on  trial.  It  is 
not  dissimilar  to  the  examination  with  a  magni- 
fying glass.  Proportions  are  so  enlarged  thereby  to 
the  vision  that  faint  lines  and  marks,  as  well  as  the 
genuine  characteristics  of  handwriting,  which  per- 
haps could  not  otherwise  be  clearly  discerned  and 
appreciated,  are  thus  disclosed  to  observation  and 
afford  additional  and  useful  means  of  making  com- 
parisons between  admitted  signatures  and  one  which 
is  alleged  to  be  only  an  imitation.  Under  proper 
precautions  in  relation  to  the  preliminary  proof  as 
to  the  exactness  and  accuracy  of  the  copies  pro- 

1  Leathers  v.  Salver  Wrecking  Co.,  2  Wood,  680,  682. 

2  Miller  v.  Johnson,  27  Md.  36;  Tome  v.  Parkersburg,  39  Md.  36. 
*  Marcy  v.  Barnes,  16  Gray,  160. 


COMPARISON  WITH  PHOTOGRAPHIC  COPIES.         337 

duced  by  the  art  of  the  photographer,  we  are  unable 
to  perceive  any  valid  objections  to  the  use  of  such 
proposed  representations  of  original  and  genuine 
signatures  as  evidence  competent  to  be  considered 
and  weighed  by  a  jury." 

3.  The  right  to  permit  such  a  comparison  to  be 
made  is  denied,  however,  in  cases  where  no  proof 
has  been  made  as  to  the  manner  and  exactness  of  the 
photographic  method  used.1  In  so  ruling  the  New 
York  court  say:  '  'We  may  recognize  that  the  photo- 
graphic process  is  ruled  by  general  laws  that  are  uni- 
form in  their  operation,  and  that  almost  without  ex- 
ception a  likeness  is  brought  forth  of  the  object  set 
before  the  camera.  Still  somewhat  for  exact  likeness 
will  depend  upon  the  adjustment  of  the  machinery, 
upon  the  atmospheric  conditions  and  the  skill  of  the 
manipulator.  And  in  so  delicate  a  matter  as  the 
reaching  of  judicial  results  by  the  comparison  of 
writings  through  the  testimony  of  experts,  it  ought 
to  be  required  that  the  witness  should  exercise  his 
acumen  upon  the  thing  itself  which  is  to  be  the  basis 
of  his  judgment ;  and  still  more,  that  the  thing  it- 
self should  be  at  hand,  to  be  put  under  the  eye  of 
other  witnesses  for  the  trial  upon  it  of  their  skill. 
The  certainty  of  expert  testimony  in  these  cases  is 
not  so  well  assured  as  that  we  can  afford  to  let  in  the 
errors  or  differences  in  copying,  though  it  be  done 
by  howsoever  a  scientific  process."  The  objections 
to  the  use  of  photographic  copies  in  such  cases  were 
very  ably  stated  in  a  decision  excluding  the  opinions 
based  on  such  evidence,  in  a  case  decided  some  ten 
years  before  in  the  Surrogate's  Court  in  the  county 
of  New  York.  It  was  said  that  such  evidence  would 

1  Hynes  v.  McDerniott,  82  N.  Y.  41. 

(22) 


338  EXPERT  TESTIMONY. 

raise  many  collateral  issues,  as,  for  instance,  the  cor- 
rectness of  the  lens,  the  state  of  the  weather,  the  skill 
of  the  operator,  the  color  of  the  impression,  the 
purity  of  the  chemicals,  the  accuracy  of  the  focusing, 
the  angle  at  which  the  original  to  be  copied  was  in- 
clined to  the  sensitive  plate,  etc.  "When  we  reflect 
that  by  placing  the  original  to  be  copied  obliquely  to 
the  sensitive  plate,  the  portion  nearest  to  the  plate 
may  be  distorted  by  being  enlarged,  and  that  the 
portion  furthest  from  the  plate  must  be  correspond- 
ingly decreased,  whilst  the  slightest  bulging  of  the 
paper  upon  which  the  signature  be  printed  may  make 
a  part  blurred  and  not  sharply  defined,  we  can  form 
some  idea  of  the  fallacies  to  which  this  subject  is  lia- 
ble. *  *  *  In  what  manner  can  photography 
make  the  signature,  in  any  practical  sense,  more  ap- 
parent to  the  observer  than  the  signature  itself? 
The  operator  may,  moreover,  through  fraud  or  skill, 
make  some  particular  lines  in  the  reproduced  signa- 
ture stand  forth  more  prominently  than  in  the  orig- 
inal signature.  If  the  photograph  be  an  absolutely 
perfect  reproduction  of  the  original  signature — the 
former  being  the  same  as  the  latter — there  can  be  no 
necessity  for  the  study  of  the  reproduction.  If, 
through  the  fraud  or  skill  of  the  operator,  some  lines 
be  brought  out  with  undue  prominence,  then  it 
should  not  be  considered  proper  evidence  on  which 
to  base  an  opinion,  for  it  is  not  a  correct  reproduc- 
tion."1 

§  141.  Comparison  with  Letterpress  Copies. — 
As  a  rule  comparison  with  letter  press  copies  is  not 
allowed.  A  comparison  of  writings  should  be  made 
with  originals  if  possible,  and  copies  produced  by  a 

1  Taylor  Will  Case,  10  Abb.  Pr.  (N.  S.)  300. 


COMPARISON    WITH    WRITINGS.  339 

press  or  by  a  machine,  however  exact  they  may  be, 
are  not  regarded  as  originals.  And  the  right  to 
make  use  of  such  copies  for  purposes  of  comparison 
has  been  denied  on  that  ground.1 

In  a  case  in  California  it  has  been  held  not  only 
that  a  press  copy  of  a  writing  is  inadmissible  until 
the  non-production  of  the  original  has  been  accounted 
for,  but  that  an  expert  cannot  testify  as  to  the  gen- 
uineness of  a  disputed  writing  upon  a  comparison  of  a 
genuine  writing  with  a  press  copy  of  the  writing  when 
its  genuineness  is  disputed.  The  court  say:  "This 
was  not  permissible  under  any  rule  with  which  we 
are  acquainted.  *  *  *  It  would  be  adding  vastly 
to  the  danger  of  such  evidence,  to  permit  evidence 
to  be  given  from  a  comparison  of  genuine  writings 
with  a  press  copy  of  the  writing  whose  genuineness 
is  diputed.  Indeed,  in  this  very  case  the  expert,  on 
cross-examination,  testified  *  that  it  would  be  very 
dangerous  to  decide  on  a  press  copy  for  sure.'  : 
The  Supreme  Court  of  Pennsylvania  has  likewise  held 
that  letterpress  copies  cannot  be  used  for  the  pur- 
pose of  a  comparison.  That  court  says  :  "  Here 
there  was  merely  a  copy  —  a  press  copy,  it  is  true — 
of  the  nature  of  a  fac-simile,  but  not  necessarily 
exact,  as  the  spreading  of  the  ink  in  such  copies  of- 
ten obliterates  the  fine  lines  of  a  handwriting,  though 
substantially  preserving  its  original  form.  It  is  man- 
ifest such  copies  would  be  an  unsafe  standard.  I 
know  of  no  authority  for  their  introduction,  and 
upon  principle  they  are  inadmissible." 

§    142.      Comparison    with    Writings   made   on   the 
Trial. — A  party  cannot  be  compelled,  on  cross-exam- 

1  Commonwealth  v.  Eastman,!  Gush.  189,  207. 

2  Spottiswood  v.  Weir,  66  Cal.  525. 

3  Cohen  v.  Teller,  93  Fa.  St.  123. 


340  EXPERT  TESTIMONY. 

ination,  to  write  his  name  in  court  for  the  purpose 
of  having  it  compared  with  the  disputed  writing.1 
But  if  he  writes  his  name  as  requested,  it  has  been 
held  that  it  may  be  used  as  a  standard  of  compari- 
son, for  the  purpose  of  contradicting  him.2  Hence, 
in  a  recent  case  in  Nebraska,  where  the  defendant 
denied  the  genuineness  of  a  promissory  note,  and 
called  his  son  as  a  witness,  who  testified  in  chief 
that  certain  words  in  the  note  which  his  father  act- 
ually gave  were  written  by  himself,  and  on  cross-ex- 
amination was  requested  to  write  the  same  words  in 
the  presence  of  the  jury,  it  was  held  that  such  writ- 
ing could  be  used  for  purposes  of  comparison,  the 
party  conducting  the  examination  taking  the  risk 
whether  the  writing  was  dissimilar  or  not.3  But  a 
party  is  not  entitled  to  write  his  signature  in  the 
presence  of  the  jury  for  purposes  of  comparison  with 
a  signature  purporting  to  be  his,  the  genuineness  of 
which  he  denies.4  There  are  cases,  however,  which 
show  that  presiding  judges  in  their  discretion  have 
ordered  or  allowed  signatures  to  be  written  in  the  pres- 
ence of  the  jury  and  to  be  considered  by  them.5  But 
we  are  not  aware  of  any  case  which  asserts  that  a  pre- 
siding judge  is  required  by  law  to  allow  this  to  be 
done.  He  may  refuse  to  permit  it  to  be  done  when 
the  circumstances  are  such  that  it  does  not  appear  to 
furnish  a  fair  standard  of  comparison.6  And  in  a 

1  First  National  Bank  of  Houghton  v.  Robert,  41  Mich.  709;  Gilbert  v. 
Simpson,  6  Daly  (X.  Y.),  30. 

2  Cobbett  v.  Kilminster,  4  Fos.  &  Fin.  490;  Doe  v.  Wilson,  10  Moore, 
P.  C.  502,  530;  Chandler  v.  LeBarron,45  Me.  534. 

3  Huff  v.  Xims,  11  Xeb.  364. 

4  King  v.  Donahue,  110  Mass.  155 ;  United  States  v.  Jones,  10  Fed.  Rep. 
469. 

5  Osboroe  v.  Hosier,  6  Mod.  167;  Williams'  Case,  1  Lewin,  137;  Regina 
v.  Taylor,  6  Cox  C.  C.  58. 

6  Commonwealth  v.  Allen,  128  Mass.  46,  50. 


COMPARISON    IN    ORTHOGRAPHY.  341 

case  in  Alabama  it  has  been  held  error  to  permit  a 
witness,  who  confesses  to  have  written  the  forged 
instrument  under  the  direction  and  request  of  the 
prisoner,  to  write  a  similar  instrument  in  the  pres- 
ence of  the  court  and  jury,  for  the  purpose  of  com- 
parison.1 

§  143.  Writings  Admissible  for  Comparison  in 
Orthography.  —  Although  prior  to  the  act  of  1854 
writings  could  not  be  introduced  in  evidence  in  the 
English  courts,  for  the  purpose  of  showing  a  simi- 
larity in  the  formation  of  letters,  or  figures  and  modes 
of  writing,  yet  it  was  held  they  could  be  introduced 
for  the  purpose  of  proving  a  particular  mode  of  spell- 
ing. For  such  a  purpose  specimens  of  the  party's 
handwriting  containing  that  particular  orthography 
were  admissible.2  A  peculiar  case  of  this  kind  oc- 
curred at  the  Greemvich  County  Court.  The  party 
denied  most  positively  that  a  certain  receipt  was  in 
his  handwriting.  It  read,  "Received  the  Hole  of 
the  above."  He  was  asked  to  write  a  sentence  con- 
taining the  word  "whole."  He  took  pains  to  dis- 
guise his  hand,  but  adopted  the  above  phonetic 
style  of  spelling,  even  retaining  the  capital  H.3  But 
in  Wisconsin  the  preceding  cases  not  having  been 
brought  to  the  attention  of  the  court,  a  different 
view  seems  to  have  been  taken  of  the  subject.  In 
that  case,  which  was  an  indictment  for  arson,  the 
prosecution  desired  to  show  that  a  letter,  containing 
threats  of  arson,  was  written  by  the  prisoner.  It 
contained  words  of  a  peculiar  form,  style  and  or- 
thography, and  was  repeated  to  him  orally  and  ver- 
bally by  the  police  officers  at  the  station,  who  re- 

1  Williams  v.  State,  61  Ala.  33. 

2  Brookes  v.  Tichborne,  5  Exch.  929. 
8  Taylor  on  Evidence,  1552,  note  a. 


342  EXPERT  TESTIMONY. 

quested  him  to  write  as  they  read.  The  copy  thus 
made  was  found  to  be  an  exact  fac-simile  of  the  orig- 
inal in  the  peculiarities  above  noted.  The  court 
excluded  it  011  the  ground  that  a  comparison  of 
hands  was  not  allowable.  The  letter,  however, 
might,  perhaps, J,have  been  inadmissible  on  other 
grounds,  as  that  it  was  compelling  the  prisoner  to 
give  evidence  against  himself;  but  this  was  not 
referred  to  by  the  court. 

§  144.  Comparison  of  Writings.  —  The  Rule  on 
Cross-Examination  as  to  Fictitious  Specimens. — The 
question  has  been  raised  whether  it  is  competent  on 
cross-examination  to  test  the  knowledge  of  the 
witness  by  showing  him  real  and  fictitious  signa- 
tures and  asking  him  to  say  which  of  them  are 
genuine.  In  those  States  where  a  comparison  is  only 
allowed  to  be  made  with  writings  which  are  admit- 
ted to  be  genuine,  it  is  evident  that  such  a  compari- 
son should  not  be  allowed  except  both  parties  are 
agreed  which  of  the  signatures  are  real  and  which 
false,  for  unless  so  agreed  side  issues  are  raised 
which  complicate  the  case.1  The  rule  which  excludes 
writings  not  admitted!}'  genuine  applies  with  as 
much  force  to  the  cross-examination  as  to  the  direct 
examination .  To  admit  such  writings  would  lead ,  as 
well  in  the  one  case  as  in  the  other,  to  an  indefinite 
number  of  collateral  issues,  and  would  operate  as 
a  surprise  to  the  opposite  party  who  would  not 
know  what  writings  were  to  be  produced,  and  there- 
fore could  not  be  prepared  to  meet  them. 

In  an  action  brought  in  New  York  upon  a  prom- 
issory note  alleged  to  be  a  forgery,  an  expert  by  the 
name  of  O'Neil  was,  on  the  cross-examination,  shown 

1  Howard  v.  Patrick,  43  Mich.  121, 128;  Rose  v.  First  National  Bank 
of  Springfield,  91  Mo.  399;  Massey  v.  Bank,  104  111.  327. 


COMPARISON    IN    ORTHOGRAPHY.  343 

thirty-three  signatures  and  asked  which  of  them 
were  genuine  signatures  and  which  were  forgeries. 
Against  the  defendant's  objection  he  was  allowed  to 
pick  out  certain  of  the  signatures  as  genuine,  and  to 
testify  that  he  could  not  say  as  to  the  others,  but 
thought  that  they  were  genuine.  Thereafter  a  wit- 
ness was  allowed  to  testify  that  certain  of  the  signa- 
tures which  the  expert  O'Neil  had  pronounced  gen- 
uine were  written  by  him,  the  witness.  This  was 
held  error,  the  court  saying  :  "It  was  not  material 
to  the  issue  to  show  whether  any  of  those  thirty- 
three  signatures  were  genuine  or  false.  *  *  *  It 
is  plain  the  signatures  were  prepared  for  the  sole 
purpose  of  testing  the  skill  of  witnesses.  O' Neil's 
attention  was  called  to  them  in  the  belief  that  he 
would  not  be  able  to  pick  out  the  genuine  from  the 
false.  He  expressed  his  opinion.  The  evidence  of 
Williams  did  not  contradict  him.  It  showed  his 
opinion  was  in  some  respects  inaccurate.  But  how 
was  it  material  whether  those  thirty-three  signatures 
were  genuine  or  not  ?  The  issue  was  as  to  the  sig- 
natures to  the  note.  Whether  O'Neil  was  right  or 
wrong  as  to  the  thirty-three  signatures  it  did  not  aid 
in  determining  the  real  issue.  It  was  a  collateral 
issue,  and  if,  by  possibility,  O'Neil  could  have  been 
legally  permitted  or  required  to  answer  the  ques- 
tion, his  answer  would  have  been  conclusive  upon 
the  plaintiff.  She  could  not  afterwards  call  wit- 
nesses to  contradict  him  on  that  collateral  and 
immaterial  issue."  l 

It  has  been  held,  however,  in  the  Supreme  Court 
of  Indiana,  that  the  accuracy  of  an  expert  witness 

1  Hilsley  v.  Palmer,  32  Hun,  472  (1884) .  The  same  ruling  was  made  in 
Van  Wyck  v.  Mclntosh,  14  N.  Y.  439.  And  see  Dietz  v.  Fourth  Na- 
tional Bank,  69  Mich.  287,  289. 


344  EXPERT  TESTIMONY. 

can  be  tested  on  cross-examination  by  asking  him 
whether  the  disputed  writing  and  another  not  admit- 
ted to  be  genuine  are  in  the  same  handwriting.1 
And  in  that  State,  as  elsewhere  appears,  comparison 
is  only  allowable,  on  the  direct  examination,  with 
writings  which  are  admitted  to  be  genuine. 

§  145.  Detection  of  Counterfeit  Bank  Notes. — 
Books  known  as  bank  note  detectors,  are  not  compe- 
tent evidence  as  to  the  genuineness  or  worthlessness 
of  bank  bills,  neither  is  the  testimony  of  a  witness 
who  does  not  profess  to  be  an  expert,  admissible 
on  the  same  point.2  One  who  is  not  acquainted 
with  the  handwriting  of  the  president  or  cashier 
of  the  bank,  but  who  has  studied  and  learned 
the  system  by  which  it  is  believed  counterfeit 
bank  notes  can  be  detected,  and  who  has  such 
knowledge  of  the  marks  and  devices  used  in  etching 
and  engraving  as  enables  him  to  detect  gross  coun- 
terfeits, is  competent  to  testify  as  an  expert  concern- 
ing the  genuineness  of  bank  notes.3  So  where  a  wit- 
ness has  been  in  the  habit  of  receiving  and  paying 
out  notes  of  the  bank,  and  believes  that  he  has 
thereby  become  acquainted  with  the  handwriting  of 
its  president  and  cashier,  he  is  considered  qualified 
by  his  experience  to  testify  as  to  the  genuineness 
of  notes  purporting  to  have  been  issued  by  the  bank,4 
although  he  has  never  seen  these  officers  write. 
One  who  is  a  bank  officer,  engaged  in  banking,  and 
a  judge  of  counterfeit  money,  is  competent  to  give 

1  Thomas  v.  State,  103  Ind.  419. 

2  Payson  v.  Everett,  12  Minn.  216. 

3  Jones  v.  Finch,  37  Miss.  468. 

4  Allen  v.  State,  3  Humph.    (Tenn.)  367;   Commonwealth  v.  Carey,  2 
Pick.  (Mass.)  47;  State  v.  Candler,  3   Hawk's  Law  &  Eq.  (N.  C.)  393; 
Sasser  v.  State,  13  Ohio,  453;  Hess  v.  Ohio,  5  Ohio,  6;  Kirksey  v.  Kirk- 
sey,  41  Ala.  626;  State  v.  Allen,  1  Hawk's  L.  &  Eq.  (N.  C.)  6. 


DETECTION    OF    COUNTERFEIT    BANK    NOTES.       345 

his  opinion  as  an  expert  as  to  the  spuriousness  of  a 
bank  note.1  A  cashier  who  has  received  and  passed 
a  great  number  of  the  notes  of  the  bank  in  question, 
and  believes  he  can  distinguish  between  a  genuine 
and  counterfeit  note,  is  competent  to  give  his  opin- 
ion as  an  expert.2  The  same  principle  governs  in 
the  case  of  tellers.3  But  bank  officers  are  not  the 
only  witnesses  who  are  qualified  to  testify  in  such 
cases.  And  it  has  been  said  that  the  opinion  of  any 
one,  who  is  familiar  with  the  notes  of  the  bank  in 
question  may  be  received.*  Hence,  the  testimony 
of  merchants,  brokers  and  others,  who  are  in  the 
habit  of  receiving,  scrutinizing  and  paying  out  the 
notes  of  the  bank,  is  received  as  coming  from  wit- 
nesses whose  experience  renders  them  qualified  to 
express  an  opinion.5  In  NCAV  Hampshire  it  is  said 
that  a  bill  may  be  proved  to  be  a  counterfeit  by  per- 
sons who  know  the  signatures  of  the  president  and 
cashier,  by  having  seen  the  bills  in  circulation.6  Ex- 
perts are  allowed  to  testify  as  to  the  false  character 
of  bank  bills,  Avithout  first  proving  that  the  bank 
purporting  to  issue  them  had  an  existence/  or  that 
it  had  issued  genuine  bills  of  which  those  in  ques- 
tion might  be  counterfeits.8  In  the  case  of  bills  of 
exchange,  it  has  been  held  that  one  who  had  pre- 
sented to  the  firm  many  notes  which  had  been  paid 
by  them,  was  qualified  by  his  experience  to  testify 

1  May  v.  Dorsett,  30  Ga.  116;  State  v.  Hooper,  2  Bailey  (S.  C.)  Law, 
37;  Atwood  v.  Cornwall,  28  Mich.  339. 

2  State  v.  Harris,  5  Ired.  (N.  C.)  Law,  287. 

3  Hess  v.  Ohio,  5  Ohio,  6;  Kirksey  v.  Kirksey,  41  Ala.  626. 

*  State  v.  Hooper,  2  Bailey  (S.  C.)  Law,  37;  State  v.  Tutt,  Ib.  44. 

5  State  v.  Cheek,  13  Ired.  (N.  C.)  114;  Watson  v.  Cresap,  1  B.  Mon. 
(Ky.)  196. 

6  State  v.  Carr,  5  N.  H.  369,  373. 

7  Jones  v.  State,  11  Ind.  357. 

8  Crawford  v.  State,  2  Ind.  132. 


346  EXPERT  TESTIMONY. 

that,  in  his  opinion,  the  handwriting  of  the  bill  in 
question  was  the  same  as  that  upon  the  bills  which 
the  firm  had  paid.1  Although  it  cannot  be  considered 
as  laying  down  a  correct  principle  of  law,  it  is  worthy 
of  note  that  in  an  early  case  in  the  New  York  court 
of  sessions,  it  was  ruled  that  experts  should  not  be 
allowed  to  swear  as  to  the  genuineness  of  bank  bills, 
if  witnesses  could  be  produced  who  had  seen  the 
president  and  cashier  write.2 

§  146.  Regulation  of  such  Evidence  by  Statutory 
Provision. — In  some  of  the  States  statutory  provision 
has  been  made  as  to  the  reception  of  evidence  in  the 
cases  considered  in  the  preceding  section.  Such 
provision  has  been  made  in  Illinois,  Indiana,  Kan- 
sas, Pennsylvania,  and  perhaps  elsewhere. 

Illinois. — "Persons  of  skill  shall  be  competent  to 
testify  as  to  the  genuineness  of  any  bill,  note  or  other 
instrument  alleged  to  be  forged  or  counterfeited." 

Indiana. — '  'Persons  of  skill  may  be  called  to  prove 
the  genuineness  of  a  note,  bill,  draft,  or  certificate 
of  deposit,  but  three  witnesses,  at  least,  shall  be  re- 
quired to  prove  the  fact,  except  in  the  case  of  a  lar- 
ceny thereof,  the  simple  evidence  of  the  cashier  of  a 
bank  purporting  to  have  issued  the  same  may  be 
received  as  sufficient." 

Kansas. — "Persons  of  skill  or  experts  may  be 
called  to  testify  as  to  the  genuineness  of  a  note,  bill, 
draft,  certificate  of  deposit,  or  other  writing,  but  three 
witnesses,  at  least,  shall  be  required  to  prove  the 
fact,  except  in  the  case  of  a  larceny  thereof,  the  single 
evidence  of  the  president,  cashier,  or  teller  of  the 

1  Gordon  v.  Price,  10  Ired.  (N.  C.)  385. 

2  People  v.  Badger,  1  Wheeler  Or.  Gas.  543. 

8  Starr  &  Curtis,  Ann.  St.  (1885),  p.  785,  §  155. 
4  2  Revised  Statutes  (1876),  p.  396,  §  91. 


TESTIMONY    AS    TO    HANDWRITING.  347 

bank  purporting  to  have  issued  the  same,  or  the 
maker  thereof,  may  be  received  as  sufficient."1 

Pennsylvania. — '  'Upon  the  trial  of  any  indictment 
for  making,  or  passing  and  uttering  any  false,  forged 
or  counterfeit  coin,  or  bank  note,  the  court  may  re- 
ceive in  evidence  to  establish  either  the  genuineness 
or  falsity  of  such  coin  or  note,  the  oaths  or  affirma- 
tions of  witnesses  who  may  by  experience  and  habit 
have  become  expert  in  judging  of  the  genuineness 
or  otherwise  of  such  coin  or  paper,  and  such  testi- 
mony may  be  submitted  to  the  jury  without  first  re- 
quiring proof  of  the  handwriting  or  the  other  tests 
of  genuineness,  as  the  case  may  be,  which  have  been 
heretofore  required  by  law."2 

In  Maine  it  is  provided  that  in  the  case  of  forged 
bank  notes,  etc.,  if  the  president  or  cashier  reside 
out  of  the  State,  or  more  than  forty  miles  from  the 
place  of  trial,  the  opinions  of  other  witnesses  may 
be  received.3  And  in  Rhode  Island  it  is  provided 
that  the  opinions  of  skilled  persons  may  be  received 
in  such  cases,  provided  the  persons  whose  names  are 
forged  are  out  of  the  State,  or  reside  thirty  miles 
distant  from  the  place  of  trial.4 

§  147.  The  Value  of  Expert  Testimony  as  to  Hand- 
writing.— Any  discussion  of  the  subject  of  expert 
testimony  in  handwriting  would  be  incomplete  if 
it  should  omit  some  reference  to  the  value  attached 
to  that  species  of  testimony.  But  that  subject  is 
considered  in  a  subsequent  chapter  to  which  the 
reader  is  referred.5 


1  General  Statutes  (1889),  vol.  2,  §  5284. 

2  Brightly 's  Purd.  Dig.  (1700-1872),  p.  631,  §63. 

3  Revised  Statutes  (1871),  p.  836,  §  8. 

4  Public  Statutes  (1882),  p.  589,  §  44. 

5  See  chapter  11. 


348  EXPERT  TESTIMONY. 


CHAPTER  VIII. 


EXPERT  AND  OPINION  TESTIMONY  ON  QUESTIONS  OF  VALUE. 
SECTION. 

148.  Proof  of  Value. 

149.  The  Opinions  of  Experts  on  the  Question  of  Value. 

150.  The  Opinions  of  Ordinary  Witnesses  on  the  Question  of  Value. 

151.  When  the  Opinions  of  Witnesses  on  the  Question  of  Value  are 

Inadmissible. 

152.  The  Competency  of  the  Witness  must  First  be  Shown. 

153.  Competency  in  Particular  Cases.- 

154.  Form  of  Question — Amount  of  Damages. 

155.  The  Value  of  Real  Estate. 

156.  Value  of  Personal  Property  Generally. 

157.  Value  of  Services  Generally. 

158.  Value  of  Legal  Services. 

159.  Value  of  Services  Rendered  by  Physicians  and  Nurses. 

160.  Value  of  Annuities. 

161.  Value  of  Foreign  Currency  and  Negotiable  Securities. 

§  148.  Proof  of  Value. — The  value  of  a  thing  is 
sometimes  capable  of  proof  as  a  fact,  but  many 
times,  and  we  may  even  say  generally,  is  provable 
by  the  opinion  of  witnesses.  But  before  proceeding 
to  a  consideration  of  the  principles  concerning  the 
admissibility  of  opinions  on  questions  of  value,  it 
may  be  well  to  call  attention  to  certain  general  rules 
governing  proof  of  value: 

1.  If  an  article  has  a  market  value,  that  usually 
controls  as  the  best  evidence  of  its  value.1  But 

1  Durst  v.  Burton,  47  N.  Y.  167. 


PROOF    OF    VALUE.  349 

property  does  not  always  possess  a  market  value,  in 
which  cases  witnesses  may  testify  as  to  their  esti- 
mate of  its  value.1 

2.  If  the  question  is  as  to  the  value  of  the  arti- 
cle at  a  particular  time,  evidence  of  the  price  for  a 
brief  period  before  and  after  the  time  may  be  given, 
if  it  is  impracticable  to  show  the  value  at  the  pre- 
cise time.2 

3.  And  if  the   question  is  as  to  the  value  of  the 
article  at  a   particular  place,  evidence  of  the  price 
of  such  articles  at  places  not  distant,  or  in  other 
controlling  markets,  can  be  shown,  if  it  is  impracti- 
cable to  show  the  value  at  the  precise  place*. 

4.  But  evidence  of  the  value  of  the  article  at 
other  places  than  the  place  in  question  cannot  be  re- 
ceived if  its  value  at  the  particular  place  can  be 
shown.* 

5.  It  is  usually  held  that  evidence  of  actual  sales 
of  like  articles  can  be  shown,5  the  time  of  sale  not 
being  too  remote. 

6.  Evidence  of  offers  to  sell  like  articles,  made 

1  Laaning  v.  Chicago,  etc.  Ry.  Co.,  68  Iowa,  502;  St.  Louis,  etc.  R.  R. 
Co.  v.  Chapman,  38  Kan.  307. 

2Cahen  v.  Platt,  69  X.  Y.  348,  352;  Abell  v.  Munson,  IS  Mich.  306; 
Denton  v.  Smith.  61  Mich.  431. 

3  Lowell  v.  County  Commissioners,  146  Mass.  403;  Cahen  v.  Platt,  69 
N.  Y.  348,  352.    But  the  evidence  will  not  be  received  if  the  place  is  too 
distant.    In  Raridan  v.  Central,  etc.  Ry.  Co.,  69  Iowa,  531,  it  was  un- 
dertaken to  prove  the  value  of  corn-stalks  for  winter  pasture  in  a  par- 
ticular neighborhood  by  a  witness  who  knew  their  value  at  a  place  from 
six  to  nine  miles  from  it,  and  the  court  held  the  witness  incompetent. 

4  Gregory  v.  McDowel,  8  Wend.  435. 

5  Sawyer  v.  Boston,  144  Mass.  470;  Paine  v.  Boston,  4  Allen,  168;  Tru- 
itt  v.  Baird,  12   Kan.  420;  Gilpin  v.  Consequa,  3   Wash.  184;  Northwest 
Fuel  Co.  v.  Mahler,  36  Minn.  166;  St.  Louis,  etc.  R.  R.  Co.  v.  Haller,  82 
111.  208;  Colbertson,  etc.  Provision   Co.  v.  Chicago,  111  111.  651;  Wash- 
burn  v.  Milwaukee,  etc.  R.  R.  Co.,  59  Wis.  364;  Cherokee  v.  S.  C.,  etc. 
Co.,  52  Iowa,  279.    But  see  Pittsburg,  etc.  R.  R.  ^o.  v.   Patterson,  107 
Pa.  St.  461,464. 


350  EXPERT  TESTIMONY. 

by  dealers  in  the  ordinary  course  of  business,  is  ad- 
missible to  prove  market  value.1  And  it  may  be 
shown  as  against  the  owner  what  he  has  offered  to 
take  for  the  property,  provided  the  offer  was  not  by 
way  of  compromise.2  But  the  owner  will  not  ordi- 
narily be  allowed  to  show  what  he  has  been  offered 
for  his  property.3  So  in  proving  the  value  of  land, 
evidence  as  to  how  much  has  been  offered  for  adja- 
cent property  must  as  a  rule  be  excluded,4  although 
it  has  been  held  in  Michigan  that  an  offer  made  in 
good  faith  by  a  neighbor  to  give  a  certain  sum  for 
the  land  in  question  is  admissible.5 

7.  In  determining  the  value  of  property  it  is  al- 
lowable to  show  what  the  property  cost,6  or  was  sold 
for,7  even  at  an  auction  sale.8 

8.  Market  values  may  be  proved  by  reference  to 
market  reports  published  in  the  daily  papers  of  the 
market  city.9     But  it  has  been  held  that  a  witness 
cannot  be  permitted  to  testify  to  a  knowledge  of 
the  market  value  of  a  commodity  in  a  distant  place, 

J  Harrison  v.  Glover,  72  N.  Y.  451. 

2  Springfield  v.  Schmook,  68  Mo.  394. 

3  Fowler  v.  County  Commissioners,  6  Allen,  92;  Dickenson  v.  Fitch- 
burg,  13  Gray,  546;  Watson  v.  Milwaukee  Ry.  Co.,  57  Wis.  332;  Central 
Pacific  R.  R.  Co.  v.  Pearson,  35  Cal.  247;  St.  Joseph,  etc.  R.  R.  Co.  v. 
Orr,  8  Kau.  419. 

4  Concord  R.  R.  Co.  v.  Greeley,  23  N".  H.  237;   Perkins  v.  People,  27 
Mich.  386;  Lehmicke  v.  St.  Paul,  etc.  R.  B.  Co.,  19  Minn.  464;  Davis  v. 
Charles  River  Branch  R.  R.  Co.,  11  Cush.  506. 

5  Jackson  v.  Armstrong,  50  Mich.  65. 

6  Boggan  v.  Home,  97  N.  C.  268;   Small  v.  Pool,  8  Ired.  (X.  C.)  47; 
McPeters  Y.  Ray,  85  N.  C.  462;  Ham  v.  Salem,  100  Mass.  350;  St.  Louis, 
etc.  R.  R.  Co.  v.  Smith,  42  Ark.  265;  Hazen  v.  Smiley,  28  Kan.  278. 

7Atwood  v.  Bearss,  45  Mich.  469;  Greeley  v.  Stilson,  27  Mich.  153; 
Jennings  v.  Prentice,  39  Mich.  421;  Thompson  v.  Moiles,  46  Mich.  42; 
Buford  v.  McGetchie,  60  Iowa,  298;  Clements  v.  Burlington,  etc.  R.  R. 
Co.,  74  Iowa,  442. 

8  Smith  v.  Mitchell,  12  Mich.  180;  Dyer  v.  Rosenthal,  45  Mich.  588. 

9  Sisson  v.  Cleveland,  etc.  R.  R.  Co. ,14  Mich.  489;  Peter  v.  Thickstun, 
51  Mich.  589. 


OPINIONS    AS    TO    VALUE.  351 

when  his  information  is  solely  derived  from  read- 
ing the  market  reports  in  a  newspaper  published  at 
a  remote  point.1 

§  149.  The  Opinions  of  Experts  on  the  Question 
of  Value. — The  opinions  of  experts  are  received  in 
evidence  on  the  question  of  value.2  "It  is  every- 
day's  practice,"  said  Mr.  Chief  Justice  NELSON  of 
New  York,  "to  take  the  opinion  of  witnesses  as  to 
the  value  of  property — persons  who  are  supposed  to 
be  conversant  with  the  particular  article  in  question, 
and  of  its  value  in  the  market:  as  a  farmer,  or  dealer 
in,  or  person  conversant  with  the  article,  as  to  the 
value  of  lands,  cattle,  horses,  produce,  etc.  These 
cases  all  stand  upon  the  general  ground  of  peculiar 
skill  and  judgment  in  the  matters  about  which  opin- 
ions are  sought." 

This  rule,  however,  did  not  commend  itself 
to  the  courts  of  New  Hampshire,  and  the  prac- 
tice there  was  to  exclude  the  opinions  of  wit- 
nesses on  questions  of  value,  in  cases  where  it 
was  customary  in  the  courts  of  other  States  to  un- 
hesitatingly receive  them,  provided  only,  the  wit- 
nesses were  duly  qualified  to  testify  in  relation  to 
the  subject  of  inquiry.  For  example,  the  practice 
in  that  State  was  to  exclude  the  opinions  of  witnesses 
as  to  the  value  of  real  estate,  irrespective  of  any 


1  Fairley  v.  Smith,  87  X.  C.  367. 

2  Brown  v.  Providence  &  Springfield  R.  R.  Co.,  12  R.  I.  238;  Buffum 
v.  N.  Y.  Cent.,  etc.  R.  R.  Co.,  4  R.  I.  221 ;  Forbes  v.  Howard,  4  R.  I.  360; 
Cantling  v.  Hannibal,  etc.  R.  R.  Co.,  54  Mo.  385;  Hough  v.  Cook,  69  111. 
381;  Shaw  v.  City  of  Charlestown,  2  Gray   (Mass.),  109;  Edmonds  v. 
City  of  Boston,  108  Mass.  535;  Dickenson  v.  Fitchburg,  13  Gray  (Mass.), 
546;  Cobb  v.  City  of  Boston,  109  Mass.  438;  Burger  v.  Northern  Pacific 
R.  R.  Co.,  22  Minn.  343.  347;  Crawford  v.  Wolf,  29  Iowa,  568;  Tebbetts 
v.  Haskins,  16  Me.  283,  289;  Sexton  v.  Lamb,  27  Kan.  426. 

3  Lincoln  v.  Saratoga,  etc.  R.  R.  Co.,  23  Wend.  425,  433. 


352  EXPERT   TESTIMONY. 

question  as  to  their  qualifications.1  The  exclusion 
was  based  on  the  assumption  that  the  ordinary  value 
of  land  of  a  particular  description,  within  the  county, 
was  a  matter  of  public  notoriety,  and  was,  there- 
fore, such  a  question  as  the  jury,  required  by  stat- 
ute to  be  composed  of  freeholders,  would  be  fully 
conversant  with,  and  abundantly  able  to  decide.  So 
in  the  same  State  the  courts  have  held  that  there 
was  nothing  in  the  study,  or  ordinary  observation 
of  horses  which  entitled  a  witness  to  be  introduced 
as  an  expert  as  to  their  value.2  This  practice  of  ex- 
cluding opinions  in  such  cases  was  found  not  to 
work  well,  and  was  embarrassing  to  the  jury,  as  well 
as  prejudicial  to  the  rights  of  the  parties  interested 
in  the  litigation.  The  legislature  accordingly  inter- 
fered, and  provided  as  follows:  "The  opinions  of 
witnesses  as  to  the  value  of  any  real  estate,  goods 
or  chattels,  may  be  received  as  evidence  thereof, 
when  it  appears  to  the  court  that  they  are  qualified 
to  judge  of  such  value." 

§  150.  The  Opinions  of  Ordinary  Witnesses  on  the 
Question  of  Value. — The  opinions  of  ordinary  wit- 
nesses may  also  be  received  in  evidence  on  questions 
of  value.  It  is  not  necessary  that  the  witness  should 
be  an  expert  to  testify  as  to  value,  but  it  may  be 
proved  by  the  opinion  of  any  witness  possessing 
knowledge  on  the  subject/  The  opinions  of  persons 
acquainted  with  the  value  of  property  are  sometimes 

1  Rochester  v.  Chester,  3  X.  H.  364;  Petterborough  v.  Jaffrey,  6  X.  H. 
462;    Hoitt  v.  Moulton,  1  Foster.  586;    Marshall  v.  Columbian  Mutual 
Fire  Ins.  Co.,  7  Foster,  157. 

2  Robertson  v.  Stark,  15  N.  H.  109 ;  Low  v.  Connecticut,  etc.  R.  R.  Co., 
45  N.  H.  370,  381. 

8  General  Laws  of  New  Hampshire  (1878),  p.  532,  §  23. 

4  Central  R.  R.  Co.  v.  Wolf,  74  Ga.  664;  San  Diego  Land,  etc.  Co.  v. 
Xeale,  78  Cal.  63,  76;  Terre  Haute,  etc.  R.  R.  Co.  v.  Crawford,  100  Ind. 
530;  Alt  v.  California  Fig,  etc.  Co.,  19  Xev.  118. 


IXADMISSIBILITY    OF    OPINION.  353 

received  in  evidence,  although  such  knowledge  may 
not  be  the  result  of  any  peculiar  skill  in  any  partic- 
ular branch  of  business,  or  department  of  science.1 
They  are  received  upon  the  ground  of  necessity.2 
: 'These  opinions  are  admitted,  not  as  being  the  opin- 
ions of  experts,  strictly  so  called,  for  they  are  not 
founded  on  special  study  or  training,  or  professional 
experience,  but  rather  from  necessity,  upon  the 
ground  that  they  depend  upon  knowledge  which 
any  one  may  acquire,  but  Avhich  the  jury  may  not 
have,  and  that  they  are  the  most  satisfactory,  and 
often  the  only  attainable  evidence  of  the  fact  to  be 
proved . ' 

A  distinguished  writer  has  stated  the  rule  as  fol- 
lows: 

:'Two  essentials,  therefore,  exist  to  a  proper  esti- 
mate of  value: 

"First.  A  knowledge  of  the  intrinsic  properties 
of  the  thing. 

'  'Secondly.  A  knowledge  of  the  state  of  the  mar- 
kets. As  to  such  intrinsic  properties  as  are  occult 
and  out  of  the  range  of  common  observers,  experts 
are  required  to  testify;  as  to  the  properties  which 

1  Swan  v.  Middlesex,  101  Mass.  173;    Wyman  v.  Lexington,  etc.  R.  R. 
Co. ,13  Met.  (Mass.)  216,326;  Dalzell  v.City  of  Davenport,  12  Iowa,  437, 
440;  Whittield  v.  Whitfield,  40  Miss.  352,358;  Cautling  v.  Hannibal,  etc. 
R.  R.  Co.,  54  Mo.  385;    Continental  Ins.  Co.  v.  Horton,  28  Mich.  173; 
Printz  v.  People,  42  Mich.  144;  Richardson  v.McGoldrick,43  Mich.  476; 
Keables  v.  Christie,  47  Mich.  595 ;  Whitesell  v.  Crane,  8  W.  &  S.  (Peun.) 
372;  McGill   v.  Rowand,  3   Pa.  St.  452;  Mish   v.  Wood,  34  Pa.  St.  451, 
454;    Thatcher  v.  Kaueher,  2   Col.  698;    Cooper  v.  State,  53  Miss.  393; 
Cooper  v.  Randall,  59  111.  317,  320;  Washington,  etc.  Co.  v.  Webster,  68 
Me.  449;  Anson  v.  D  wight,  18  Iowa,  244;  Foster  v.  Ward,  75  Ind.  594; 
Pittsburg,  etc.  R.  R.  Co.   v.  Rose,  74  P.i.   St.  362,  368;    Chaiuuess  v. 
Chamness,  53  Iiid.  304;  Sullivan  v.  Lear,  23  Fla.  463. 

2  Wymau  v.  Lexington,  etc.  R.  R.  Co.,  13  Met.  (Mass.)  316,  325;  Dal- 
zell v.  City  of  Davenport,  12  Iowa,  437,  440. 

3  Swan  v.  Middle-ex.  101  Mass.  173,  per  Gray.  J. 

(23) 


354  EXPERT    TESTIMONY. 

are  cognizable  by  an  observer  of  ordinary  business 
sagacity,  being  familiar  with  the  thing,  such  an  ob- 
server is  permitted  to  testify." 

§    151.    When  the  Opinions  of  Witnesses  on  the  Ques- 
tion of  Value  are   Inadmissible. — The   rule   that  the 
opinions  of  witnesses  are  admissible  on  questions 
of  value,  is  inapplicable  in  those  cases  in  which  the 
subject   of  value   is   susceptible   of  specific   proof. 
Hence,  in  a  recent  case  in  the  United  States  Court 
of  Claims,  the  court  declared  that  the  testimony  of 
experts  could  not  be  received  to  show  the  value  of 
a  cotton  factor's  outlays  for  insurance,  freight,  re- 
bating,  etc.,   inasmuch  as  specific   proof  could  be 
given  of  the  outlays  actually  made  by  the  factor.2 
And  in  a  case  in  New  York  where  a  witness,  who 
stated  that  he  knew  the  effect  on  fat  cattle  of  getting 
out  of  an  inclosure  and  wandering  about,  was  asked 
what,  in  his  opinion,  would  be  the  shrinkage  of  cer- 
tain cattle,  which  he  had  not  seen,  resulting  from 
such  a  tramp,  it  was  held  that  he  could  not  answer. 
The  court  said:   "To  admit  this   was  to  extend  the 
admissibility  of  evidence  by  experts  too  far.    There 
could  be  no  difficulty,  in  this  case,  in   showing  the 
actual  injury  to  the  cattle  which  followed  their  es- 
cape and  their  wandering  about.   If  they  had  shrunk 
in  weight,  or  had  been  injured  in  appearance,  these 
facts  could  have  been  proved  by  those  who  saw  them. 
For  these  were  plain  and  conspicuous  results.     To 
prove  what  is  the  usual  effect  of  such  an  escape  on 
such  cattle  is  to  substitute  conjecture  for  certainty." 


1 1  Wharton's  Evidence,  §  447. 

2  Patten  v.  United  States,  15  Ct.  of  01.  288.     See,  too,  Page  v.  Hazard, 
5  Hill  (X.  Y.),  G03. 

3  Schernerhorn  v.  Tyler,  11  Hun,  551. 


1NADM1SSIBILITY    OF    OPINIONS.  355 

The  object,  of  course,  was  to  show  the  depreciation 
in  value  of  the  cattle. 

The    opinions    of    witnesses    will    be   incompe- 
tent wherever   the    data   upon  which    the   conclu- 
sions of  the  experts  are   based,  do  not  have  that 
certainty  of    relation  which  entitles  them  to    au- 
thority as  a  law  of  science.     It  has,  for  this  reason, 
been  held  that  a  conjectural  deduction,  or  general- 
ization, made  by  experts  upon  the  operation  of  other 
railroads   was  incompetent  evidence  for  the  purpose 
of  showing  the  worth  of  the  government's  right  to 
use  the  plaintiff's  road.1     The  experts  were  persons 
specially   familiar   with  railroads  and  railroad  ac- 
counts, and  the  claimants  contended  that  they  had 
proven  by  them  that  20  per  cent,  of  the  gross  trans- 
portation earnings  of  a  railroad   was  a  reasonable 
and  proper  deduction  for  the  use  of  a  railroad,  and 
that  they  were,  therefore,  entitled  to  recover  80  per 
j3ent.  of  their  tariff  rates.     The  court  refused  to  con- 
sider the  evidence  on  the  ground  that,  inasmuch  as 
railroads  differed  in  their  essential  features,  the  data 
were  too  uncertain  to  entitle  them  to  authority  as  a 
law  of  science.     While,  on  the  other  hand,  it  has 
been  held  that  the  opinions  of  witnesses  specially 
acquainted  with  the  business  of  the  railroad  in  ques- 
tion, and  of  the  expenses  of  operating  it,  would  be 
competent  evidence  as  to  the  value  of  the  use  of  the 
particular  road  during  a  given  time,2  yet  there  may 
be  inquiries  as  to  value  which,  from  their  very  nat- 
ure, cannot  be  answered  by  any  one  as  an  expert. 
Such  would  be  an  inquiry  into  the  value  of  the  re- 
version of  land  over  which  a  railroad  is  located;  the 

1  Ati-hison,  etc.  K.  K.  Co.  v.  United  States,  15  Ct.  of  Cl.  126. 
-  Sturgis  v.  Knapp,  33  Vt.  486. 


356  EXPERT   TESTIMONY. 

value  of  which  necessarily  depends  on  the  length  of 
time  that  the  public  easement  over  it  may  continue. 
As  the  essential  element  on  which  the  inquiry  turns 
is  one  in  relation  to  which  there  has  been  no  experi- 
ence, it  follows  that  an  expert  could  not  be  heard  to 
express  an  opinion  thereon..1 

§>  152.  The  Competency  of  the  Witness  must  First 
be  Shown. — Whenever  it  is  desired  to  have  the  opin- 
ions of  a  witness  on  the  subject  of  value,  it  is  al- 
ways necessary,  whether  the  witness  is  offered  as  an 
expert  or  not,  to  lay  some  foundation  for  the  intro- 
duction of  his  opinion,  by  showing  that  he  has  had 
the  means  to  form  an  intelligent  opinion,  "derived 
from  an  adequate  knowledge  of  the  nature  and  kind 
of  property  in  controversy,  and  of  its  value/'7 
Where  a  witness  is  produced  to  testify,  in  the  char- 
acter of  an  expert,  as  to  the  value  of  property,  it 
should  appear  that  he  has  some  special  skill  or  ex- 
perience, or  peculiar  knowledge  of  the  value  of  the 
class  of  property  about  which  it  is  proposed  to  ques- 
tion him. 

It  is  impossible,  however,  to  define  with  any  pre- 
cision the  degree  of  special  knowledge  which  the 
witness  should  possess  in  order  to  render  him  com- 
petent.* The  witness  should  have  peculiar  knowl- 
edge of  the  property  and  of  its  value,  is  the  language 

1  Boston,  etc.  E.  R.  Co.  v.  O1J  Colony,  etc.  R.  R.  Co..  3  Allen  (Mass.), 
142,  147. 

2  Whitney  v.  City  of  Boston,  98  Mass.  315.     In  this  case  it  was  held  no 
error  to  exclude  the  opinion  of  a  shoemaker  as  to  the  value  of  land,  who 
had   hired   one  of   several  buildings  on   the  land,  occupying  the  upper 
stories  and  underletting  the  lower.    And  see  Chambovet  v.  Cagnet,  3  J. 
&  S.  (N.  Y.)  474 ;  Haight  v.  Kimbak,  51  Iowa,  13 ;  Reed  v.  Drais,  67  Cal. 
491;  Daly  v.  N.  W.  Kimball  Co.,  67  Iowa,  132;  Russell  v.  Harden.  40 
Minn.  88. 

3  Bedell  v.  Lr.ng  Island  R.  R.  Co.,  44  N.  Y.  367,  370. 


COMPETENCY  OF  WITNESSES  MUST  BE  SHOWN.      357 

of  the  decisions.1  "The  evidence  of  experts  is  re- 
ceived on  the  ground  of  science  or  skill,  and  wit- 
nesses may  speak  on  the  value  of  property  or  labor, 
where  it  appears  they  have  peculiar  sources  of  knowl- 
edge to  guide  them  on  these  subjects,  and  which  are 
not  presumed  to  be  equally  within  the  reach  of  the 
jury."  The  matter  may  be  made,  perhaps,  more 
clear  by  a  reference  to  some  of  the  cases: 

1.  A  dealer,  in  any  particular  kind  of  articles,  in 
the  absence  of  evidence  to  the  contrary  will  gener- 
ally be  presumed  to  have  sufficient  knowledge  of  the 
value  of  those  articles  to  qualify  him  to  testify  with 
regard  thereto.3 

A  witness  who  had  experience  and  knowledge  of 
sales  by  retail  of  such  articles  as  sugar,  whisky,  to- 
bacco and  ale,  and  of  the  losses  which,  according  to 
his  own  experience  in  the  course  of  several  years, 
were  the  results  of  sales  of  such  goods  in  small 
quantities,  has  been  allowed  to  testify  that  it  would 
be  impossible  to  realize  by  small  sales  the  amount 
of  the  retail  prices  on  the  entire  quantity  of  articles 
sold,  and  to  give  his  reasons  therefor,  and  to  testify 
that,  as  the  result  of  his  own  experience,  his  opin- 
ion was  that  small  retail  sales  of  such  articles  would 
cause,  in  ordinary  cases,  a  loss  of  5  per  cent  upon 
the  total  amount  of  goods  so  sold/ 

In  a  case  in  Iowa  it  was  held  that  a  husband  and 
wife,  who  were  the  owners  of  ordinary  household 

1  Terpenning  v.  Corn  Exchange  Ins.  Co. ,43  X.  Y.  279. 

2  Lamoure  v.  Caryl,  4  Denio  (N.  Y.),  373. 

8Lawton  v.  Chase,  108  Mass.  238;  Cantling  v.  Hannibal,  etc.  R.  R. 
Co.,  54  Mo.  385;  Luse  v.  Jones,  39  X.  J.  Law,  708;  Sturn  v.  Williams, 
38  X.  Y.  Sup.  Ct.  325;  Johnston  Harvester  Co.  v.  Clark.  31  Minn.  165; 
Reed  v.  Xew,  35  Kan.  727;  Illinois  Central  R.R.  Co.  v.  Copelnnd.  24  111- 
336;  Hinckley  v.  Kersting,21  111.  247;  Burger  v.  Northern  Pacific  R.  R' 
Co.,  22  Minn.  343. 

<  M'Fadden  v.  Murdock,  1  Irish  R.  (C.  L.)  211. 


358  EXPERT   TESTIMONY. 

goods,  might  testify  as  to  the  value  of  such  goods 
without  proof  having  been  made  of  their  knowledge 
of  the  value  of  such  goods,  the  court  declaring  that 
such  knowledge  would  be  presumed.1 

2.  It  is  not  necessary  that  the  expert  witness  tes- 
tifying as  to  value  should  have  any  personal  knowl- 
edge of  the  value  of  the  article  in  question.  Thus, 
a  witness  who  had  been  a  ship-broker  and  ship-owner 
for  years,  and  who  testified  that  he  knew  the  fair 
market  value  of  ships  in  the  port  of  New  York,  has 
been  allowed  to  testify  as  to  the  fair  market  value  of 
a  certain  ship,  although  his  knowledge  of  her  was 
substantially  confined  to  the  information  he  got  from 
the  general  records  used  in  his  business  and  reports 
made  therein,  by  which,  he  testified,  he  was  always 
guided  in  buying  and  selling  ships.2 

As  experts  may  testify  where  they  have  no  per- 
sonal knowledge  of  the  facts  in  controversy,  basing 
their  opinions  upon  the  facts  which  have  been  testi- 
fied to  by  other  witnesses,  so  the  opinion  of  an  ex- 
pert may  be  received  as  to  the  value  of  articles  sim- 
ilar to  one  which  has  been  described  by  witnesses 
having  personal  knowledge  of  it,  although  such  ex- 
pert has  neve'r  seen  the  particular  article  in  question 
which  has  been  lost  or  destroyed.  No  reason  is  per- 
ceived why  an  expert,  testifying  in  respect  to  value, 
should  be  governed  by  a  different  principle  in  this 
respect  than  that  which  applies  to  experts  testifying 
upon  other  subjects. 

In  a  case  in  Pennsylvania  in  which  this  question 
was  considered,  it  was  said:  "What  is,  then,  to  pre- 
vent a  merchant  from  testifying,  in  corroboration  of 
an  invoice,  as  to  values,  where  no  values  are  given, 

1  Tubbs  v.  Garrison,  68  Iowa,  44. 

2  Slocovich  v.  Orient  Mut.  Ins.  Co.,  108  N.  Y.  53. 


COMPETENCY  OF  WITNESSES  MUST  BE  SHOWN.      359 

when  goods  are  lost?  The  fact  of  the  existence  or 
loss  of  the  goods  is  not  touched  by  such  testimony. 
That  remains  to  be  established  by  other  evidence. 
I  think  I  have  known  many  instances  of  this  kind. 
If  a  trunk  should  be  packed  by  a  servant  incapable 
of  placing  a  value  on  the  wardrobe  of  his  or  her 
master  or  mistress,  although  able  to  testify  to  each 
article  and  describe 'its  quality,  yet  wholly  incom- 
petent to  give  the  slightest  idea  of  the  real  value  of 
the  articles,  in  case  of  loss  how  is  the  value  to  be 
ascertained  but  by  the  testimony  of  a  tradesman 
acquainted  with  the  value  of  such  articles,  based 
upon  a  description  of  them?  So  in  regard  to  furni- 
ture insured,  and  lost  by  fire,  it  can  hardly  be 
doubted  but  that  it  would  be  competent  to  fix  the 
value  by  persons  acquainted  with  such  matters,  and 
competent  as  such  to  testify,  after  its  quality  had 
been  described.  If  the  rule  be,  that  only  persons 
who  have  seen  the  articles  which  have  been  lost  can 
give  an  estimate  of  their  value,  then,  in  all  the  cases 
suggested,  there  would  be  a  failure  to  recover  for  a 
loss,  or  the  jury  would  be  left  to  guess  at  their  value. ' ' 
Accordingly,  a  nurseryman  has  been  allowed  to 
testify  as  to  the  value  of  trees  which  had  been  de- 
stroyed, and  which  he  had  not  seen,  but  had  heard 
described. -  And  where  the  question  was  as  to  the 
cost  of  rebuilding  a  house  which  had  been  burned,  a 
contractor  and  builder  of  houses,  who  had  the  house 
in  question  described  to  him  in  detail,  has  been  al- 
lowed to  express  an  opinion  as  to  its  value.3  Other 
cases  of  similar  import  have  been  decided.4 

i  Mish  v.  Wood,  34  Pa.  St.  451. 

»  Whitbeck  v.  X.  Y.,  etc.  R.  R.  Co.,  36  Barb.  (X.  Y.)  644. 

3  Phoenix  Ins.  Co.  v.  Copeland,  86  Ala.  551. 

4  Orr  v.  Mayor,  etc.,  64  Barb.  100;  Miller  v.  Smith,  112  M.iss.470.  475; 


3(50  EXPERT    TESTIMONY. 

3.  When  a  witness  testifies  as  to  the  value  of 
property  from  a  personal  examination  which  he  has 
made  of  it,  the  admissibility  of  his  opinion  will  de- 
pend upon  whether  the  time  of  examination  was  so 
remote  to  the  time  of  inquiry  as  to  have  no  rele- 
vance to  the  inquiry.  The  fact  that  the  knowledge 
which  the  witness  possesses  of  the  property  relates 
to  its  value  at  an  earlier  date  than  the  one  at  issue 
will  not  render  his  opinion  inadmissible,  unless  the 
earlier  date  is  so  remote  as  to  render  his  opinion  of 
no  importance  in  the  inquiry.1 

Thus,  in  the  case  above  cited,  the  knowledge  of 
the  expert  related  to  the  value  of  the  property  as  it 
was  six  months  before  he  was  called  upon  to  testify. 
But  the  court  admitted  the  testimony,  not  regarding 
the  time  as  too  remote,  under  the  circumstances  of 
the  particular  case.  And  when  the  inquiry  was  as 
to  the  value  of  a  vessel,  and  the  witness  had  not  seen 
her  for  five  or  six  years,  and  since  that  time  $7,000 
had  been  spent  in  repairs  on  her,  the  lower  court 
excluded  his  testimony  on  the  ground  that  the  wit- 
ness was  not  qualified.  The  Court  of  Appeals,  how- 
ever, said:  "While  it  would  not,  we  think,  have 
been  erroneous  to  receive  and  submit  the  evidence 
to  the  jury  for  what  it  was  worth,  we  cannot  say,  as 
matter  of  law,  that  the  judge  exceeded  the  bounds 
of  a  reasonable  discretion  in  holding  that  the  witness 
was  not  qualified  as  an  expert  to  give  an  opinion  as  to 
the  value  of  the  ship  at  the  time  she  was  burned." 

Beecher  v.  Dennison,  13  Gray  (Mass.),  354.  In  Miller  v.  Smith,  supr«,  a 
witness  possessing  special  knowledge  aud  experience  was  permitted  to 
express  an  opinion  as  to  the  value  of  fast  trotting  horses  of  a  certain  age, 
size,  gate,  speed,  and  other  qualities,  although  he  had  not  seen  the  horse 
in  question. 

1  Cobb  v.  City  of  Boston,  109  Mass.  438. 

2  Slocovich  v.  Orient  Mut.  Ins.  Co.,  108  N.  Y.  50. 


COMPETENCY    IN    PARTICULAR    CASES.  361 

The  time  at  which  the  witness  saw  the  prop- 
erty is  immaterial,  provided  it  is  shown  by  other 
testimony  that  the  property  was  in  substantially  the 
same  condition  at  the  time  the  witness  saw  it  as  at 
the  time  at  which  its  value  is  to  be  fixed.1 

It  is  evident  that  much  must  depend  on  the  nat- 
ure of  the  property.  A  period  of  time  which  would 
not  be  remote  as  to  real  estate  might  be  too  remote 
as  to  personalty,  or  what  would  be  remote  as  to  realty 
in  one  part  of  the  country  would  not  be  remote  in 
another  part,  where  the  value  of  such  property 
changes  slowly. 

If  the  witness  is  produced  to  testify  as  to  the  value 
of  services  he  cannot  be  permitted  to  testify  until  it 
appears,  either  from  his  own  or  other  competent  ev- 
idence, that  he  is  acquainted  with  the  usual  value  or 
rate  of  compensation  paid  for  like  services  at  the  time 
when,  and  place  where,  the  services  were  rendered.1 
He  must  be  possessed  of  special  knowledge  on  the 
subject." 

§  153.  Competency  in  Particular  Cases.  —  We 
have  stated  in  preceding  sections  some  general  rules 
governing  the  competency  of  witnesses  to  testify  on 
the  subject  of  value.  A  reference,  however,  to  some 
particular  cases  in  which  the  question  of  competency 
has  been  raised  may  perhaps  be  found  helpful : 

The  opinion  of  an  author  is  received  as  to  the 
value  of  his  literary  productions,  his  opinion  being 
based  on  the  time  and  labor  employed  in  the  prepa- 
ration of  the  work.4 


1  Connelly  v.  Edgerton,  22  Neb.  82. 

»  Louisville,  eto.,R.  R.  Co.  v.  Ccx,  30  111.  App.  Ct.  380;  Larinoure  T. 
Caryl,  4  Denio,  370. 
3  Sener  v.  Hoist,  31  Minn.  479. 
*  Babcock  v.  Raymond,  2  Hilton  (N.  Y.),  61. 


362  EXPERT    TESTIMONY. 

An  architect  is  allowed  to  testify  as  to  the  value  of 
houses,  and,  in  the  case  cited,  the  witness  was  per- 
mitted to  testify  as  to  the  depreciation  in  the  value 
of  buildings  in  a  neighborhood,  as  caused  by  a  nui- 
sance.1 

An  artist  may  testify  as  an  expert  as  to  the  value 
of  a  picture.* 

A  broker  is  competent  to  testify  as  to  the  value  of 
stocks.3 

A  carpenter,  engaged  in  buying  lumber  and  build- 
ing houses,  is  a  competent  witness  as  to  the  value  of 
the  lumber  in  a  particular  house.4  And  carpenters 
have  been  permitted  to  testify  as  to  the  value  of  a 
house  which  had  been  destroyed  by  fire,  it  appearing 
that  they  possessed  a  general  acquaintance  with  the 
house  in  question,  having  a  knowledge  of  its  shape, 
location,  external  appearance,  and,  to  some  extent, 
its  internal  condition,5  Such  persons  have  also  been 
allowed  to  express  an  opinion  as  to  the  cost  of  build- 
ing a  house  in  the  vicinity  of  the  town  where  they 
worked,  their  opinions  being  based  on  an  examina- 
tion of  the  plans  and  specifications  of  the  house.6  In 
a  recent  case  in  New  York,  it  is  laid  down  that  a  car- 
penter and  builder,  an  architect,  or  an  insurance 
and  real  estate  agent  engaged  in  appraising  similar 
property,  would  be  competent  to  express  an  opinion 
as  to  the  value  of  replacing  a  house  destroyed  by  fire, 
their  opinion  being  based  on  knowledge  which  they 


1  Gauntlet  v.  Whitworth,  2  C.  &  K.  720. 

2  Houston,  etc.,  R.  R.  Co.  v.  Burke,  55  Tex.  324. 
8  Jonan  v.  Ferrand,  3  Rob.  (La.^i  366. 

4  Simmons  v.  Carrier,  68  Mo.  416 ;  Shepard  v.  Ashley,  10  Allen  (Mass.) , 
542. 

6  Bedell  v.  Long  Island  R.  R.  Co.,  44  N.  Y.  367. 
6  Hills  v.  Home  Ins.  Co.,  129  Mass.  345. 


COMPETENCY    IN    PARTICULAR    CASES.  363 

had  acquired  as  dealers  or  builders.1  So,  too,  it  has 
been  held  that  a  carpenter  and  builder  who  liad  seen 
the  buildings  in  question,  and  knew  the  kind  and 
quality  of  lumber  put  into  them,  was  qualified  to 
testify  what  it  was  reasonably  worth  to  put  the  lum- 
ber into  the  buildings.2 

Mechanics  and  machinists  have  been  allowed  to 
testify  as  to  the  difference  in  value  of  an  engine  be- 
fore and  after  an  accident  which  happened  to  it.8 
Where  the  question  was  as  to  the  value  of  a  particular 
threshing  machine,  a  witness  wrho  testified  that  he 
had  run  a  threshing  machine  for  six  or  eight  years, 
and  had  seen  the  particular  machine  in  operation, 
was  adjudged  competent  to  express  an  opinion  as  to 
how  much  less  such  machine  was  worth  than  other 
machines  that  would  run  and  do  first-class  work.4 

But  in  a  case  in  Minnesota  a  witness  who  had  no 
knowledge  of  the  market  value  of  machines  of  the 
kind  in  question,  was  held  incompetent  to  express 
any  opinion  as  to  its  value  although  he  had  worked 
the  machine.5 

A  superintendent  of  locomotive  works,  who  was 
familiar  with  the  cost  of  building,  rebuilding  and  re- 
pairing locomotives,  and  with  the  value  of  the  mate- 
rials used  therein  and  the  labor  employed  thereon, 
has  been  permitted  to  answer  the  following  question: 
"  Could  the  engine  (which  you  have  seen)  by  any 
possibility  have  been  so  damaged  by  wear  and  tear, 
or  by  accident  that,  with  the  parts  or  materials  as 
testified  to  by  Mr.  F.,  $20,000  would  have  been  a 

1  Woodruff  v.  Imperial  Fire  Ins.  Co.,  83  N.  Y.  133,  138;  S.  C.,  10  Ins. 
Law  J.  125.    See  also  Tebbetts  v.  Haskins,  16  Me'.  283. 

2  Hough  v.  Cook,  69  111.  581. 

3  Moore  v.  Township  of  Kenockee,  75  Mich.  332,  343. 

4  Sheldon  v.  Booth,  50  Iowa.  209. 
Osborne  v.  Murk.«,  33  Minn.  56. 


364  EXPERT    TESTIMONY. 

reasonable  charge  for  rebuilding  her?' '  So  one  who 
had  purchased  and  sold  machinery  of  a  peculiar  kind, 
and  owned  and  run  it,  and  had  made  estimates  of  the 
cost  of  building  such  machinery,  and  had  procured 
such  estimates  of  other  machinists  for  the  purpose 
of  having  such  machines  manufactured,  has  been 
held  competent  to  testify  as  to  the  value  of  such 
machinery.2  And  mill-Wrights  are  competent  wit- 
nesses as  to  the  value  of  work  done  on  a  mill,5  and 
machinists  as  to  the  value  of  particular  machinery.* 
Farmers,  graziers  and  drovers  have  been  held  com- 
petent to  testify  as  to  the  value  of  growth  and  in- 
crease of  weight  which  certain  cattle  might  reason- 
ably have  been  expected  to  attain  but  for  the  over- 
feeding of  the  pasture  where  they  grazed  .5  A  farmer 
has  been  permitted  to  testify  as  to  the  loss  in  value 
of  a  cow  by  allowing  her  to  become  dry.6  So  he  has 
been  held  competent  to  express  an  opinion  as  to  the 
value  of  a  mare  of  common  blood7  and  as  to  the 
value  of  gr,ass  destroyed  by  cattle.8  And  a  farmer 
living  in  the  neighborhood  where  certain  farm  horses 
were  sold,  who  knew  their  value  and  the  character 
of  the  work  done  by  them  upon  the  farm  and  who 
had  hired  horses  to  do  such  work  for  himself,  was 
held  qualified  to  testify  as  to  the  value  of  the  use  of 
such  a  team.9  Where  the  value  of  a  blooded  stallion 
was  in  question,  a  farmer  engaged  in  raising  horses 

1  Tyug  v.  Fields,  5  N.  Y.  Sup.  Ct.  672. 

2  Haskins  v.  Hamilton  Mut.  Ins.  Co.,  5  Gray  (Mass.),  432. 

3  Adams  v.  Dale,  29  Ind.  273. 

4  Steam  Paeket  Co.  v.  Sickels,  10  How.  (U.  S.)  419;  Wicter  v.  Burt,  31 
Ala.  33. 

5  Gilbert  v.  Kennedy,  22  Mich.  117. 

6  Smith  v.  Wilcox,  4  Hun,  411. 

T  Brown  v.  Moore,  32  Mich.  254. 

8  Townsend  v.  Brundage,  6  Thomp.  etr.  (X.  Y.)  527 

9  Kennett  v.  Fickel,  41  Kan.  211. 


IX    PARTICULAR    CASES. 

for  the  market  was  held  competent  to  testify  in  re- 
gard to  the  animal,  whether  he  was  acquainted  with 
that  particular  breed  of  animals  or  not.1 

Some  Miscellaneous  Cases. — Persons  experienced 
in  building  railroads  may  testify  what  will  be, 
in  their  opinion,  the  probable  cost  of  complet- 
ing a  railroad.2  A  gunsmith  is,  by  reason  of  his 
knowledge  of  fire-arms,  a  competent  witness  as  to 
the  value  of  a  gun.3  The  opinion  of  a  witness  as  to 
the  value  of  a  franchise  granted  by  a  city  for  the 
construction  and  operation  of  a  wharf,  has  been  re- 
ceived when  his  opinion  was  based  upon  his  own 
experience  in  constructing  and  operating  a  wharf 
under  a  similar  franchise,  and  his  opinion  was  not 
made  inadmissible  by  the  fact  that  the  witness  could 
not  state  its  value  when  considered  without  refer- 
ence to  the  ability  of  the  person  owning  it  to  build  a 
wharf  and  make  business  for  it.4 

On  a  trial  for  the  larceny  of  a  seal  skin  coat  the 
onlv  witness  who  testified  as  to  its  value  stated  that 

w 

he  had  never  seen  a  seal  skin  overcoat  bought  or  sold, 
and  it  was  not  shown  that  he  had  any  knowledge  of 
the  value  of  such  an  article  except  such  as  any 
man  of  ordinary  intelligence  might  be  presumed  to 
have.  The  prisoner  claimed  that  no  legal  proof  of 
the  value  of  the  overcoat  had  been  made.  The  Su- 
preme Court  of  Iowa  disposed  of  the  objection  against 
the  prisoner,  in  language  given  in  the  note  below.5 

1  Gere  v.  Council  Bluffs  Ins.  Co.  67  Iowa.  272. 

2  Waco.  etc.  R.  R.  Co.  v.  Shirley,  45  Tex.  355. 

3  Cooper  v.  State.  53  Miss.  393;  Bt-echer  v.  DennUton,  13  Gray  (Mass.), 
354. 

*  Sullivan  v.  Lear,  23  Fla.  463. 

5  "  We  do  not  think,  however,  that  we  should  be  justified  in  wholly 
discarding  his  testimony.  He  might  not  be  a  very  accurate  judge  of  the 
value  of  such  an  article,  but  we  think  that,  having  seen  and  examined 


366  EXPERT    TESTIMONY. 

In  a  case  in  Vermont,  an  attorney,  who  was  not  an 
expert  in  the  use,  value,  or  manufacture  of  locomo- 
tives, but  had  made  some  investigation  as  to  the 
value  of  the  engine  in  controversy,  was  allowed  to 
testif\r  as  to  its  value.1 

When  a  farmer  testified  what  in  his  opinion  it 
would  cost  to  repair  his  house,  which  had  been  dam- 
aged by  a  tornado,  but  on  his  cross-examination 
stated  that  he  was  no  mechanic,  and  could  not  tell 
how  badly  the  house  was  damaged,  nor  how  much 
repairing  would  be  necessary,  the  court  held  that  on 
motion  his  opinion  should  have  been  excluded.2 

In  a  proceeding  for  the  assessment  of  damages 
caused  by  diverting  a  stream  from  flowing  through 
a  meadow,  thereby  destroying  its  possible  use  for 
the  cultivation  of  cranberries,  a  witness  who  had 
never  cultivated  cranberries,  but  who  knew  of  a 
cranberry  bog  and  was  connected  writh  a  company 
interested  in  cranberry  meadows,  who  thought  he 
knew  "something  of  cranberry  culture,  and  who  had 
seen  the  meadow  in  question,  was  allowed  to  give 
his  opinion  as  to  the  value  of  the  wrater  that  would 
be  sufficient  to  flood  such  a  meadow,  and  this  al- 
though he  had  never  made  any  experiments  in  the 
raising  of  cranberries,  or  in  the  flow  of  water  over 
them.3 

§    154.      Form  of  Question — Amount  of  Damages. — 

We  find  it  laid  down  generally  in  the  authorities, 

the  coat,  he  might  form  some  opinion  about  it.  He  doubtless  could 
judge  with  considerable  accuracy  of  the  value  of  such  overcoats  as  are 
in  ( ommon  use,  and  he  could  judge,  we  think,  though  perhaps  not  as 
accurately,  how  this  compared  in  value  with  the  best  of  such  coats.  We 
think  that  his  testimony  was  not  inadmissible,  and,  if  not,  the  verdict 
wa*  not  without  support."  State  v.  Finch,  70  Iowa,  316. 

1  Railroad  Company  v.  Bixby.  57  Vt.  548. 

2  Lewis  v.  Burlington  Ins.  Co.,  71  Iowa,  97. 

3  Warren  v.  (Spencer  Water  Co.,  143  Mass.  155. 


FORM    OF    QUESTION.  367 

that  on  questions  as  to  the  amount  of  damages  re- 
sulting from  a  particular  transaction,  witnesses, 
whether  experts  or  not,  cannot  express  an  opinion 
but  are  confined  to  a  description  of  the  injuries;  it 
being  the  duty  of  the  jury  to  estimate  the  damages 
from  the  facts  proven  as  to  the  nature  and  character 
of  the  injuries.1 

In  the  leading  case  in  this  country*  it  was  said 
that  the  amount  of  damages  is  not  a  matter  of 
science  upon  which  opinions  may  be  received  in 
evidence,  the  court  adding:  "The  amount  of  indem- 
nity, where  it  is  not  capable  of  being  reached  by 
computation,  is  always  a  question  for  the  jury.  If 
there  be  any  rule  without  exception,  it  is  this  ;  and 
I  have  been  unable  to  find  any  instance  where  the 
opinion  of  witnesses  has  been  received."  This  was 
said  in  1837  in  a  case  where  the  question  of  damages 
rested  on  very  complicated  premises.  And  in  1886 
we  find  the  Supreme  Court  of  Arkansas  stating  the 
same  thing  :  "  This  is  one  of  the  few  subjects,"  that 
court  says,  "  upon  which  there  is  absolutely  no  con- 

1  Bain  v.  Cushman,  66  Vt.  343;  Yost  v.  Conroy,  92  Ind.  464;  Central 
R.  R.  Co.  v.   Linn,  73  Ga.  705;  Burlington,  etc.  R.   R.  Co.  v.  Beebe,  14 
Xeb.  463;  Little  Rook,  etc.  R.  R.  Co.  v.  Haynes,  47  Ark.  497;  Fremont, 
etc.  R.  R.  Co.  v.  Marley,  25  Xeb.  138,  145;  Lincoln  v.  Saratoga,  etc.  R. 
R.  Co.,  23   Wend.  (X.  Y.)  433;  Dunham   v.   Simmons,  3  Hill  (X.  Y.), 
609;  Fish  v.  Dodge,  4  Denio  (X.  Y.),  311;  Thompson  v.  Dickhart,  66 
Barb.  (X.  Y.)  604;  Terpenning  v.  Corn  Exchange   Ins.  Co..  43   X.  Y. 
270;  Whitruore  v.  Bischoff.  5  Hun  (X.  Y.),  176;  Fleming  v.  Delaware, 
etc.  Canal  Co.,  8  Hun  (X.  Y.),  358;  Evansville  R.  R.  Co.  v.  Fitzpatri.  k, 
10  Ind.  120;  Sinclair  v.  Roush,  14  Ind.  450;  Mitchell  v.  Allison,  29  Ind. 
43;  Bissell  v.  Wert,  35  Ind.  54;  Ohio, etc.  R.  R.  Co.  v.  Xickless,  71  Ind. 
271;  Piersonv.  Wallace,  7  Ark.  282;  Centra^Railroad.  etc.  Co.  v.  Kelly, 
58  Ga.  107;  Wilcox  v.  Leake,  11  La.  Ann.  178;  Atlantic,  etc.  R.  R.  Co. 
v.  Campbell,  4  Ohio  St.,  583;  Cleveland,  etc.  R.  R.  Co.  v.  Ball,  5  Obio 
St.  568;  Roberts  v.  Commissioners  of  Brown  County,  21  Kan>.  2I>:  Whit- 
more  v.   Bowman,  4   Greene   (Iowa),  148;  Ausou  v.    Dwight,  18  I  >\va, 
244. 

2  Xormau  v.  Wells,  17  Wend.  136. 


368  EXPERT    TESTIMONY. 

flict  in  the  authorities.  A  witness  is  never  permitted 
to  estimate  the  amount  of  damages  which  a  party 
has  sustained  by  the  doing,  or  not  doing,  of  a  par- 
ticular act."  But  in  1882  the  Supreme  Court  of 
South  Carolina,  in  an  action  for  breach  of  promise 
of  marriage,  decided  that  no  error  was  committed  in 
allowing  witnesses  who  were  intimate  acquaintances 
of  the  plaintiff,  who  knew  her  temperament  and  dis- 
position— her  social  position  and  all  her  surroundings, 
to  give  their  opinion  in  dollars  and  cents  as  to  the 
amount  of  damages  which  she  had  sustained.2  In 
1871  the  Supreme  Court  of  Pennsylvania  held  no 
error  was  committed  in  receiving  the  opinion  of  wit- 
nesses as  to  the  amount  of  damages,  and  it  laid  down 
the  law  as  follows  :  "As  to  unliquidated  damages, 
the  result  of  an  injury  complicated  in  its  circum- 
stances, a  witness  acquainted  personally  with  all  the 
facts  must  be  permitted  to  give  his  opinion.  Such 
matters  are  difficult  of  description,  very  few  men  be- 
ing gifted  with  that  power  of  description  of  complex 
subjects  which  can  picture  them  to  the  minds  of  oth- 
ers, so  as  to  convey  a  true  idea  of  the  reality.  An 
opinion  of  total  or  aggregate  loss  or  value  is  there- 
fore permitted  to  go  to  the  jury  as  some  evidence  of 
the  fact."  In  that  case  the  action  was  to  recover 
damages  for  an  injury  to  land  resulting  from  an  over- 
flow of  the  same  caused  by  placing  obstructions  in  the 
channel  of  a  river. 

In  many  cases  the  question  of  damages  and  the 
question  of  value  are  identical.  The  two  questions 
are  identical  whenever  the  amount  of  damages  de- 
pends wholly  on  the  question  of  value.  Inasmuch 

1  L.  R..  etc.  R.  R.  Co.  v.  Haynes,  47  Ark.  497,  501. 
£  Jones  v.  Fuller,  19  S.  C.  66. 
White  Deer  Creek  Improvement  Co.  v.  Sassaman,  67  Pa.  St.  415.  42 


FORM    OF    QUESTION.  369 

as  a  witness  may  express  an  opinion  on  the  question 
of  value,  it  would  seem  that  he  should  likewise  be 
allowed  to  express  an  opinion  on  a  question  as  to  the 
amount  of  damages — whenever  that  question  de- 
pends entirely  on  a  question  of  value.  Hence,  in 
condemnation  proceedings,  where  the  question  is  as 
to  the  damage  which  will  be  done  to  land  by  the 
construction  of  a  railroad  over  it,  the  question  of 
damage  is  identical  with  the  question  of  its  diminu- 
tion in  value  in  consequence  of  such  construction. 
What  material  difference  does  it  make  in  such  a  case 
whether  the  witness  is  allowed  to  state  his  opinion 
as  to  the  amount  of  damage,  or  is  asked,  first,  his 
opinion  as  to  the  value  of  the  land  before  the  con- 
struction of  the  road,  and  then  his  opinion  as  to  its 
value  after  the  construction  of  the  road,  while  the 
jury  is  left  to  make  the  subtraction?  And  yet  on 
this  very  question  the  courts  have  developed  a 
decided  conflict  of  authority. 

In  many  of  the  States  the  witnesses  are  not  allowed 
to  state  their  opinion  as  to  the  amount  of  damage 
sustained,  but  are  required  to  state  their  opinion  as 
to  the  value  of  the  property  before  the  taking  for  the 
public  use  and  its  value  after  such  taking.  It  is  so 
held  in  the  cases  cited  below.1  But  the  weight  of 

1  Alabama. — Alabama,  etc.  R.  R.  Co.  v.  Burkett,  42  Ala.  S3;  Montgom- 
ery, etc.  R.  R.  Co.  v.  Varner,  19  Ala.  185. 

Georgia. — Brunswick,  etc.  R.  R.  Co.  v.  McLaren,  47  Ga.  546. 

Indiana. — "Yost  v.  Conroy,  92  Ind.  464;  Hagaman  v.  Moore,  84  Ind.  496; 
New  Albany,  etc.  R.  R.  Co.  v.  Huff,  19  Ind.  315;  Evansville,  etc.  R.  R. 
Co.  v.  Fitzpatrick,  10  Ind.  120. 

Iowa. — Harrison  v.  Iowa,  etc.  R.  R.  C^v36  Iowa,  323;  Cannon  v.  Iowa 
City,  34  Iowa,  203;  Prosser  v.  Wapello,18Iowa,  2G2. 

Kansas. — Ottawa,  etc.  R.R.  Co.  v.  Adolph,41Kan.  600;  Parsons  Water 
Co.  v.  Knapp,  33  Kan.  752.  But  see  Leavenwortb,  etc.  R.R.  Co.v.  Paul, 
28  Kan.  816. 

Michigan. — In  this  State  the  witnesses  are  not  allowed  to  express  an 
opinion  as  to  tbe  amount  of  compensation  wbicb  should  be  given.  Such 

(24) 


370  EXPERT   TESTIMONY. 

authority  in  the  courts  of  this  country  seems  to 
be  opposed  to  the  doctrine  above  laid  do-.vn,  and 
to  be  in  favor  of  allowing  the  witness  to  express,  in 
such  cases,  his  opinion  as  to  the  amount  of  the  dam- 
age sustained  by  the  taking.1  The  cases  so  holding 
not  only  conform  to  the  weight  of  authority  but 
are  justified  on  principle.  As  said  in  a  well  con- 
testimony  is  said  to  be  "clearly  incompetent."  "That  amount,"  says 
the  court,  "was  the  very  thing  which  the  constitution  refers  to  the  jury, 
and  they  must  make  up  their  own  conclusions  from  proper  data.'11  It 
does  not  appear  what  data  were  laid  before  the  jury,  or  what  the  court 
considered  "proper  data'1''  to  be.  Grand  Rapids  v.  R.  R.  Co.,  58  Mich.  G42. 

Nebraska. — Fremont,  etc.  R.  R.  Co.  v.  Whalen,  11  Neb.  585;  Burling- 
ton, etc.  R.  R.  Co.  v.  Beebe,  14  Neb.  463;  Burlington,  etc.  R.  R.  Co.  v. 
Schluntz,  14  Neb.  421.  But  see  Republican  Valley  R.  R.  Co.  v.  Arnold » 
13  Neb.  485;  Northeast,  etc.  R.  R.  Co.  v.  Frazier,  25  Neb.  53. 

Ohio.— Cleveland,  etc.  R.  R.  Co.  v.  Ball,  5  Ohio  St.  568;  Atlantic,  etc. 
R.  K.  Co.  v.  Campbell,  4  Ohio  St.  583. 

Rhode  Island.— Brown  v.  Providence,  etc.  R.  R.  Co.,  12  R.  I.  238; 
Tingley  v.  Providence,  8  R.  I.  493. 

1  Opinions  as  to  the  amount  of  damage  in  such  cases  will  be  received 
in  the  following  courts: 

Arkansas. — Texas,  etc.  Ry.  Co.  v.  Kirby,  44  Ark.  103;  St.  Louis,  etc. 
Ry.  Co.  v.  Anderson,  39  Ark.  167;  Texas,  etc.  Ry.  Co.  v.  Eddy,  42  Ark. 
527. 

Illinois. — Spear  v.  Drainage  Commissioners,  113  111.  632;  Chicago  v. 
Mi-Donough,  112  111.  85;  Hays  v.  Ottawa,  etc.  R.  R.  Co.,  54  111.  373. 

Maine. — Snow  v.  Boston,  etc.  R.  R.  Co.,  65  Me.  230. 

Massachusetts. — Swan  v.  County  of  Middlesex,  101  Mass.  173;  Shattuck 
v.  Stouehatn  Branch  R.  R.  Co.,  6  Allen,  115. 

Minnesota. — Emmons  V.Minneapolis,  etc.  R.  R.  Co.,  41  Minn.  133; 
Leber  v.  Minnesota,  etc.  R.  R.  Co,  29  Minn.  256;  Simmons  v.  St.  Pa-.l, 
etr.  R.  R.  Co.,  18  Minn.  168,  184;  Lehmicke  v.  St.  Paul.  etc.  R.  R.  Co., 
19  Minn.  406,  464;  Sherman  v.  St.  Paul,  etc.R.  R.  Co.,  30  Minn.  227. 

New  York.— Hine  v.  New  York,  etc.  R.  R.  Co.,  36  Hun,  293 ;  Rochester, 
etc.  R.  R.  Co.  v.  Budlong,  6  How.  Pr.  467;  Matter  of  U  tica,  etc.  R.  R. 
Co.,  56  Barb.  456.  But  see  Matter  of  N.  Y.,  etc.  R.  R.  Co.,  29  Hun.  609. 

Oregon. — Portland  v.  Kamrn,  10  Oreg.  383. 

Pennsylvania. — Pittsburgh,  etc.  R.  R.  Co.  v.  Robinson,  95  Pa.  St.  426; 
White  Deer  Creek  Improvement  Co.  v.  Sassaman,  67  Pa.  St.  415. 

Texas. — Telephone  Telegraph  Co.  v.  Forke,  2  Tex.  App.  Civil  Cas.  318. 

West  Virginia. — Railroad  Co.  v.  Foreman,  24  W.  Va.  662. 

Wisconsin. — Washburn  v.  Milwaukee,  etc.  R.  R.  Co.,  59  Wis.  364;  Neil- 
sou  v.  Chicago,  etc.  R.  R.  Co.,  58  Wis.  516;  Soyder  v.  Western  Union 
R.  R.  Co.,  25  Wis.  60. 


THE    VALUE    OF    REAL    ESTATE.  371 

sidered  casein  New  York:  ''There  is  clearly  no  such 
inherent  distinction  between  questions  of  value  and 
questions  of  damages,  if  you  exclude  from  the  latter 
all  idea  of  any  legal  rule  or  measure  of  damages,  as 
will  bring  one  within  and  the  other  without  the 
province  of  opinions  from  witnesses."  And  there 
certainly  seems  to  be  a  growing  tendency  to  permit 
witnesses  to  express  an  opinion  on  the  amount  of 
damages  in  cases  where  the  value  of  property  is  in 
issue.2 

Where  land  is  condemned  for  a  right  of  way,  the 
land  owner  in  making  his  proofs  is  not  confined  to 
mere  expert  testimony  as  to  values  before  and  after 
location,  but  he  may  put  the  jury  in  possession  of 
such  facts  as  will  enable  it  to  make  the  proper  es- 
timate of  damage  therefrom.3 

§  155.  The  Value  of  Real  Estate. — The  cases  are 
numerous  in  which  it  has  been  necessary  to  deter- 
mine the  value  of  real  estate,  and  they  recognize 
the  principle  that  the  value  of  land  can  be  shown 
by  the  testimony  of  experts,  or  by  that  of  ordinary 
witnesses  who  have  special  knowledge  on  the  sub- 
ject. 

1.  Real  estate  agents  who  state  that  they  are  ac- 
quainted with  the  value  of  real  estate  in  the  neigh- 
borhood in  which  the  property  in  question  lies,  are 
certainly  competent  witnesses  as  to  the  value  of  the 
same.4  And  such  witnesses  are  competent  without 
proof  that  their  knowledge  is  based  on  actual  sales. 

1  Rochester,  etc.  R.R.  Co.  v.  Budlong.  10  How.  Pr.  R«  p.  289,  2!i4. 

2  See  Lewis  on  Eminent  Domain,  §436;  Mills  on   Eminent  Domain, 
§  163. 

3  See  Piugery  v.  Cherokee,  etc.  Ry.  Co.,  78  Iowa.  4:'.s,  44-2. 

4  Bristol  County  Savings  Bank  v.  Keavy,  12S  Ma-.  298. 
5  Chicago,  etc.  R.  R.  Co.  v.  Blake,  116  111.  163. 


372  EXPERT    TESTIMONY. 

That  fact  goes  to  the  value  of  the  testimony  rather 
than  to  its  competency. 

A  real  estate  agent  accustomed  to  value  and  sell 
real  property  in  the  city  or  neighborhood  where  the 
land  is  situated,  is  competent  to  testify  in  reference 
to  its  value,  although  he  himself  has  never  sold  land 
on  the  particular  street  upon  which  the  land  is  lo- 
cated,1 yet  it  is  clearly  essential  that  he  should  be 
acquainted  with  the  value  of  land  in  the  vicinity  of 
the  property  in  question.2  A  speculator  in  real  es- 
tate, who  buys  and  sells  real  property  for  himself,  is 
competent  to  testify  as  to  value,  provided  he  is  con- 
versant with  the  property  in  question,  and  with 
other  property  of  the  same  character  in  the  vicinity, 
and  knows  at  what  prices  such  property  is  held  by 
persons  owning  and  controlling  it.3 

2.  But  one  does  not  need  to  be  a  dealer  in  real 
estate  in  order  to  be  qualified  to  testify  as  to  the 
value  of  it.*  The  market  value  of  land  is  not  a  ques- 
tion of  science  or  skill  upon  which  only  experts  can 
express  opinions.5  The  opinions  of  ordinary  wit- 
nesses are  certainly  admissible  on  this  as  on  other 
questions  of  value,  notwithstanding  a  decision  to  the 
contrary  in  the  Supreme  Court  of  Rhode  Island.6 
The  rule  is  that  residents  in  the  immediate  vicinity, 
who  are  acquainted  with  the  property  in  question, 
and  know  the  value  of  the  land  in  that  neighbor- 
hood, are  competent  to  testify  concerning  its  value. 
Thus,  a  farmer  residing  in  the  vicinity  of  farming 


1  Bristol  County  Savings  Bank  v.  Keavy,  128  Mass.  298. 

2  Haulenbeck  v.  Cronkright,  23  N.  J.  Eq.  413. 

3  Jarvis  v.  Furnmn,  25  Hun  (N.  Y.),  393. 

4  Huff  v.  Hall,  56  Mich.  456. 

5  Pennsylvania,  etc.  R.  R.  Co.  v.  Buunell,  81  Pa.  St.  426. 

6  Buffuni  v.  X.  Y.,  etc.  R.  R.  Co.,  4  R.  I.  221,  224. 


THE  VALUE  OF  REAL  ESTATE.         373 

lands,  who  was  acquainted  with  the  situation  and 
quality  of  the  land  in  question,  and  who  stated  that 
he  knew  its  value,  has  been  held  competent  to  ex- 
press his  opinion  concerning  its  value,  although  he 
had  not  been  engaged  in  buying  or  selling  land,  and 
his  opinion  was  not  based  upon  actual  sales  of  that 
or  similar  land.1  The  courts  are  practically  unani- 
mous in  following  the  rule  above  stated,  that  resi- 
dents in  the  immediate  neighborhood,  who  are  ac- 
quainted with  the  value  of  property  in  that  vicinity 
and  who  know  the  property  in  question,  are  quali- 
fied to  testify  as  to  its  value.2  It  is  not  necessary 
that  the  witness  should  have  bought  or  sold  land  in 
that  vicinity,3  or  should  have  known  of  actual  sales 
of  such  tracts  as  the  one  in  question,4  that  his 
knowledge  of  sales  should  have  been  personal,5  or 

1  Kansas  City,  etc.  R.  R.  O.  v.  Ebret,  41  Kau.  22;  Kansas  City,  etc.  R. 
R.  Co.  v.  Baird,  41  Kan.  69;  Leroy,  etc.  R.  R.  Co  v.  Hawk,  39  Kan.  638; 
Kansas  City,  etc.  R.  R.  Co.  v.  Allen,  24  Kan.  33. 

2  Wallace  v.  Finch,  24  Mich.  255 ;  Stone  v.  Covell,  29  Mich.  362 ;  Thomas 
v.  Mallinckrodr.  43  Mo.  65;  Pennsylvania,  etc.  R.  R.  Co.  v.  Bunnell,  81 
Pa.  St.  426 ;  Robertson  v.  Knapp,  35  X.  Y.  91 ;  Snyder  v.  Western  Union  R. 
R.  Co.,  25  Mo.  60;  West  Newbury  v.  Chase,  5  Gray  (Mass.),  421;  Clark 
v.  Baird,  9N.  Y.  183;  Lehmicke  v.  St.  Paul,  etc.  R.R.  Co. ,19  Minn.  464; 
Simmons  v.  St.  Paul,  etc.  R.  R.  Co.,  18  Minn.  184;  Grouse  v.  Holman, 
19  Iud.30;    Brainard   v.  Boston,  etc.  R.  R.  Co.,  12   Gray   (Mass.), 407; 
Hayes  v.  Ottawa,  Oswego,  etc.  R.  R.  Co.,  54  111.  373;  Galena,  etr.  R.  R. 
Co.  v.  Haslem,  73  111.494;    Wallace  v.  Finch,  24  Mich.  255;    Hanover 
Water  Co.  v.  Ashland    Iron   Co.,  84  Pa.  St.  284;  Keithsburg,  etc.  R.  R. 
Co.  v.  Henry,  79  111.  290;  Selma,  etc.  R.  R.  Co.   v.  Keath,  53   Ga.  178; 
Hudson  v.  State,  61  Ala.  334 ;  Milwaukee,  etc.  R.  R.  Co.  v.  Eble.  4  Chand. 
(Wis.)  72;  Erd  v.  Chicago,  t-tc.  R.  R.  Co.,  41  Wis.  64;  Ferguson  v.  Staf- 
ford, 33Ind.  162;  Tate  v.  M.,  K.  &  T.  R.  R.  Co.,  64  Mo.  149;  Russell  v. 
Horn  Pond,  etc.  R.  R.  Co..  4  Gray    (M*ss.),  607;  Northeast,  etc.  R.  R. 
Co.  v.  Frazier,  25   Neb.  53;  Pingery  v.  Cherokee,  etc.  Ry.  Co.,  78  Iowa, 
439;  Blake  v.  Griswold,  103  X.  Y.  429. 

3  Whitman  v.  Boston,  etc.  R.  R.  Co.,  7  Gray   (Mass.),  313;  Lehmicke 
v.  St.  Paul,  etc.  R.  R.  Co.,  19  Minn.  464,  482. 

4  Frankfort,  etc.  R.R.  Co.  v.  Windsor,  51   Ind.  240;  Leroy,  etc.  R.  R. 
Co.  v.  Hawk,  39  Kan.  638,   641;   Kansas  City,  etc.  R.  R.  Co.,  Ehret.  41 
Kan.  22;  Kansas. City,  etc.  R.  R.  Co.  v.  Baird  41  Kan.  69. 

5  Hanover  Water  Co.  v.  Asbland  Iron  Co.,  84  Pa.  St.  284. 


374  EXPERT   TESTIMONY. 

that  it  should  have  been  derived  from  the  buyer  or 
seller  of  the  land  sold.1 

It  has  been  held  in  Rhode  Island  that  while  a 
farmer  living  in  the  vicinity  of  farming  land,  and 
familiar  with  it,  may,  as  an  expert,  give  his  estimate 
of  its  value  as  farm  land,  yet  that  his  opinion  gen- 
erally of  the  value  of  such  realty  would  be  inadmis- 
sible, since  the  market  value  of  such  realty  might 
be  much  greater  than  its  agricultural  value.2 

Where  it  was  desired  to  show  a  depreciation  in  the 
value  of  certain  real  property,  it  was  held  that  the  sec- 
retary of  an  insurance  company,  who  had  been  in  the 
habit  of  examining  buildings  in  reference  to  insur- 
ance, might  express  the  opinion  that  the.  passage  of 
locomotive  engines  within  a  certain  distance  of  a 
building  would  diminish  the  rent  and  increase  the 
rate  of  insurance  against  fire,  and  that  he  might  state 
that  his  company  had  declined  to  take  the  risk  at 
any  rate  of  insurance  on  applications  for  insurance 
on  buildings  in  that  vicinity.3 

The  Supreme  Court  of  Pennsylvania  in  a  well  con- 
sidered case  has  stated  the  law  as  to  the  competency 
of  witnesses  in  this  class  of  cases,  as  follows:  "In 
order,  therefore,  that  a  witness  may  be  competent 
to  testify  intelligently  as  to  the  market  value  of  land, 
he  should  have  some  special  opportunity  for  observa- 
tion, he  should,  in  a  general  way,  and  to  a  reasona- 
ble extent,  have  in  his  mind  the  data  from  which 
a  proper  estimate  of  value  ought  to  be  made;  if  in- 
terrogated he  should  be  able  to  disclose  sufficient 
actual  knowledge  of  the  subject  to  indicate  that  he 
is  in  condition  to  know  what  he  proposes  to  state 

1  Whitman  v.  Boston,  etc.  R.  R.  Co.,  7  Gray  (Mass.),  313. 
3  Brown  v.  Providence,  etc.  R.  R.  Co.,  12  R.  I.  238. 
3  Webber  v.  Eastern  R.  R.  Co.,  2  Met.  (Mass.)  147. 


THE    VALUE    OF   REAL    ESTATE.  375 

and  to  enable  the  jury  to  judge  of  the  probable  proxi- 
mate accuracy  of  his  conclusions.  He  may  hesitate 
in  making  an  estimate  of  the  value,  he  may  say 
that  he  does  not  know  certainly,  but,  after  due  de- 
liberation, may  be  able  to  express  an  opinion,  or 
come  to  a  conclusion,  the  accuracy  of  which,  under 
all  the  evidence,  is  of  course  wholly  for  the  jury/" 
And  the  following  statement  has  been  made  by  the 
Supreme  Court  of  Massachusetts:  "The  knowledge 
requisite  to  qualify  a  witness  to  testify  to  his  opin- 
ion of  the  value  of  lands  may  either  be  acquired  by 
the  performance  of  official  duty,  as  by  a  county  com- 
missioner or  selectman,  whose  duty  it  is  to  lay  out 
public  ways,  or  by  an  assessor,  whose  duty  it  is  to 
ascertain  the  value  of  lands  for  the  purpose  of  taxa- 
tion; or  it  may  be  derived  from  knowledge  of  sales 
and  purchases  of  other  lands  in  the  vicinity,  either 
by  the  witness  himself,  or  by  other  persons."1  While 
witnesses  testifying  to  value  have  a  right  to  give 
their  opinion  based  upon  actual  sales  known  by 
them  to  have  been  made,*  yet  it  is  ordinarily  held 
that  evidence  of  particular  sales  is  inadmissible  to 
establish  the  market  value  of  land.4  To  allow  such 
evidence  to  be  introduced  is  to  raise  an  issue  collat- 
eral to  the  subject  of  inquiry,  for  a  particular  sale 
may  have  been  a  sacrifice  occasioned  by  necessity, 
or  it  may  have  been  the  result  of  caprice  or  folly. 
But  in  some  States  evidence  of  actual  sales  of  neigh- 
boring property  is  held  admissible.5 

1  Pittsbur.;,  etc.  R.  R.  Co.  v.  Vance,  115  Pa.  St.  325. 
8  Swan  v.  Middlesex,  101  Mass.  177. 

3  Thompson  v.  Moilee.  46  Mich.  42. 

4  Pittsburg,  etc.  R.  R.  Co.  v.  Patterson,  107  Pa.  St.  461;  Selma  R.  R. 
v.  Keith,  53  G  i.  178;  Lehmicke  v.  Si.  Paul,  etc.R.R.  Co.,  19  Minn.  464; 
Central  Pacific  R.  R.  Co.  v.  Pearson,  35  Cal.  247. 

3  EJmon  Is  v.  Boston,  108  Mass.  535;  Moale  v.  Baltimore.  5  M-J.  314. 


376  EXPERT    TESTIMONY. 

The  market  value  of  land  is  not  necessarily  the 
price  which  the  land  would  command  in  a  forced 
sale  by  public  auction;  but  it  is  estimated  "upon  a 
fair  consideration  of  the  location  of  the  land,  the 
extent  and  condition  of  its  improvements,  its  quan- 
tity and  productive  qualities,  and  the  uses  to  which 
it  may  reasonably  be  applied,  taken  with  the 
general  selling  price  of  lands  in  the  neighborhood 
at  the  time.  The  price  which,  upon  full  considera- 
tion of  the  matters  stated,  the  judgment  of  well  in- 
formed and  reasonable  men  will  approve  may  be  re- 
garded as  the  market  value.  "J  The  market  value  of 
land  is  not  to  be  determined  by  combining  the  sev- 
eral values  of  its  constituent  parts  and  aggregating 
the  whole.  For  instance,  one  cannot  say  that  the 
timber  on  the  land  is  worth  a  certain  amount,  the 
gravel  so  much,  a  deposit  of  clay  so  much,  and 
when  these  are  removed  the  land  is  still  worth  so 
much;  and  therefore  that  the  land  is  worth  the  ag- 
gregate of  all  these  sums.  Such  an  estimate  is  con- 
sidered unfair  and  misleading,  and  as  confusing  the 
real  question  as  to  what  is  the  market  value  of  the 
land  as  it  is.  The  witnesses  in  stating  their  opinion 
are  entitled  to  take  into  account  whatever  goes  to 
make  up  value,  but  in  their  estimate  they  should 
give  their  opinion  of  the  market  value  of  the  whole, 
and  not  of  the  several  parts."  The  testimony  would 
be  inadmissible  to  show,  for  instance,  how  many 
building  lots,  the  land  in  question  could  be  divided 
into,  and  what  such  lots  would  be  worth  separately. 
It  is  the  tract  and  not  the  lots  into  which  it  might  be 
divided  that  is  to  be  valued.3  A  witness  testifying 

1  Pittsburg,  etc.  R.  R.  Co.  v.  Vance,  115  Pa.  St.  325. 

2  Page  v.  Wells,  37  Mich.  415. 

3  Pennsylvania,  etc.  R.  R.  Co.  v.  Cleary,  125  Pa.  St.  443. 


VALUE    OF    PERSONAL    PROPERTY.  377 

as  to  the  value  of  a  tract  of  land  may,  however, 
base  his  estimate  upon  the  value  of  other  tracts  in 
the  neighborhood.1 

§  156.  Value  of  Personal  Property  Generally.-— 
When  the  question  is  as  to  the  market  price  or  value 
of  goods  and  chattels,  the  opinions  of  merchants 
and  others  conversant  in  trade,  and  who  know  the 
value  of  that  kind  of  property,  are  received  in  evi- 
dence. The  experience  which  merchants  and  brok- 
ers acquire  in  the  ordinary  conduct  of  their  business 
is  such  as  qualifies  them  to  testify  as  to  the  value  of 
articles  with  which  they  are  required  by  the  neces- 
sities of  their  business  to  be  familiar.2  Thus,  when 
the  question  was  as  to  the  value  of  materials  for 
making  clothing,  a  manufacturer  of  clothing  has 
been  permitted  to  state  his  opinion.3  So  when  the 
question  was  as  to  the  value  of  material  and  labor 
employed  in  erecting  a  house,  master  builders  have 
been  allowed  to  give  their  opinion.4  In  like  man- 
ner the  opinions  of  carpenters  have  been  received  as 
to  the  value  of  a  house  which  had  been  destroyed  by 
fire.5  The  opinion  of  a  clerk  employed  in  a  store  in 
selling  goods  has  been  received  as  to  the  value  of 
goods,6  and  a  workman  in  a  saw  mill,  familiar  with 
the  prices  of  lumber  at  the  mill,  has  been  allowed 
to  testify  as  to  the  value  pf  particular  lumber  cut 
in  the  neighborhood  and  taken  there  for  manufact- 
ure. If  in  the  course  of  their  business  dealers  are 
kept  informed  as  to  the  maket  value  of  any  partic- 
ular thing  by  price  current  lists  duly  furnished  them 

1  Morrison  v.  Watson,  101  N.  C.  338. 

2  Reed  v.  New,  35  Kan.  727. 

3  Browning  v.  Long  Island  R.  R.  Co.,  2  Daly  (X.  Y.),  117. 

4  Tebbetts  v.  Haskins,  16  Me.  288. 

5  Bedell  v.  Long  Island  R.  R.  Co.,  44  N.  Y.  367. 

6  Sirrine  v.  Briggs,  31  Mich.  443  . 


378  EXPERT    TESTIMONY. 

for  use  in  their  business,  opinions  derived  from  such 
information  will  be  received  in  evidence.1  But  in 
an  action  for  work  and  labor  done  and  materials 
furnished,  it  has  been  held  that  the  price-list  itself 
could  not  be  received  in  evidence.2  And  it  has 
been  held  that  no  error  was  committed  in  excluding 
the  testimony  of  a  witness,  whose  knowledge  as  to 
market  price  was  derived  wholly  from  statements  of 
his  partner  as  to  the  prices  at  which  his  firm  had 
sold,  entries  of  which  it  was  his  duty  to  make  in  the 
books  of  the  firm.3 

§  157.  Value  of  Services  Generally. — The  general 
rule  is  that  it  is  competent  for  a  witness  to  state  the 
value  of  another's  services  in  all  cases  where  he  has 
knowledge  of  the  matter  in  controversy,  and  is  ac- 
quainted with  the  value  of  services  such  as  those  ren- 
dered in  the  particular  case.4  For  instance,  an  ex- 
pert accountant  may  testify  as  to  what  would  be  a 
fair  compensation  for  the  services  of  a  competent 
accountant  in  keeping  the  account  books  of  a  busi- 
ness of  a  certain  character,  and  as  to  the  usual 
charge  per  day  for  the  services  of  an  accountant  in 
fixing  up  complicated  accounts.5  And  where  the 
plaintiff,  who  was  a  real  estate  broker,  sued  for  serv- 
ices rendered  in  effecting  the  purchase  of  a  mill,  the 

1  Whitney  v.  Thatcher,  117  Mass.  526;  In  re  Cliquot's  Champagne,  3 
Wall.  (U.S.)  114;  In  re  Fennerstein's   Champagne,  Ibid.  145;  Sisson  v. 
Toledo,  etc.  R.  R.  Co.,  14  Mich.  489 ;  Cleveland,  etc.  R.  R.  Co.  v.  Perkins, 
17  Mich.  296;  Sirrinev.Briggs,  31  Mich.  443;  Lush  v.  Druse,  4  Wend.  (N, 
Y.)  317;  Terry  v.  McNeil,  58  Barb.  (N.  Y.)  241.     See  Whelan  v.  Lynch, 
60  N .  Y.  469,  and   Schmidt  v.  Herfurth,  5  Robertson    (N.  Y.),  124,  125. 

2  Cuunty  of  C'OOk  v.  Harms,  10  Brad vv.  (111.)  24. 

3  Flynn  v.  Wohl,  10  Mo.  App.  582. 

4  Bowen  v.  Bowen,  74  Ind.  470;  Johnson  v.  Thompson,  72   Ind.   167; 
Parker's  Heirs  v.  Parker's  Aduir.,  33  Ala.  459;  Stone  v.   Tupper,  58  Vt. 
409. 

5  Shattuck  v.  Train,  116  Mass.  296. 


VALUE    OF    SERVICES    GENERALLY.  379 

evidence  of  a  real  estate  broker  was  held  admissible 
as  to  the  commissions  which  he  charged  for  such 
services,  and  as  to  what  he  would  have  charged  in  the 
case  in  question.1 

But  if  the  witness  is  unacquainted  with  the  value 
of  services  such  as  those  rendered  in  the  particular 
case,  he  is  not  an  expert  in  that  particular  matter  of 
inquiry,  and  cannot  testify  as  such.  Hence,  in  a 
suit  by  a  broker  to  recover  commissions  for  the  sale 
of  a  colliery,  a  broker  whose  business  was  the  sale 
of  real  estate  in  Philadelphia,  and  who  had  no  expe- 
rience and  knew  of  no  sales  or  commissions  paid  on 
sales  of  collieries,  was  held  to  be  an  incompetent  wit- 
ness as  to  the  value  of  the  services  rendered.1 

Employers  of  labor  are  competent  to  testify  as  to  the 
value  of  the  services  of  one  in  like  employment.  Thus, 
in  an  action  brought  for  services  in  planning,  prepar- 
ing and  organizing  for  the  erection  of  a  factory,  and  in 
superintending  the  mounting  and  putting  in  opera- 
tion of  its  machinery,  the  Supreme  Court  of  Georgia 
has  permitted  witnesses,  who  were  not  experts,  and 
who  knew  nothing  of  the  particular  services  sued  for, 
except  from  a  general  description  of  the  same  con- 
tained in  the  interrogatories  in  answer  to  which  their 
evidence  was  given,  to  testify  as  to  what  in  their 
opinion  would  be  a  reasonable  salary  for  the  services 
performed.  The  court  held  that  witnesses  who  had 
employed  the  person  rendering  the  services,  or  who 
had  been  employed  with  him,  and  who  had  seen  the 
results  of  his  skill,  and  who  knew  his  professional 
standing,  could  testify  in  such  cases.3  So  it  has 
been  held  that  neighbors,  who  had  employed  serv- 

1  Elting  v.  Sturtevant,  41  Conn.  176. 

*  Potts  v.  Apcliteniju-hr.  93  Pa.  St.  142. 

3Eiiglr.  etc.  Manufacturing  Co.  v.  Brown.  58  Ga.  2-JO. 


380  EXPERT    TESTIMONY. 

ants  to  do  like  work,  are  competent  to  testify  to  the 
value  of  services  of  a  girl  employed  to  do  housework,1 
and  that  the  value  of  the  services  of  a  farm  laborer 
may  be  shown  by  the  testimony  of  those  who  had 
employed  him.2 

The  admission  of  the  opinion  of  a  witness  living 
in  one  place  as  to  the  value  of  services  performed  at 
another  was  held  no  error,  when  there  was  nothing 
to  show  that  the  witness  did  not  know  the  value  of 
labor  at  the  latter  place,  or  the  comparative  value 
of  wages  at  both.3 

§  158.  The  Value  of  Leg-al  Services. — According 
to  the  common  law  of  England  the  reward  of  an 
advocate's  services  were  deemed,  not  merces, 
but  honoraria,  and  could  not  be  recovered  by 
means  of  legal  proceedings.4  But  in  this  coun- 
try the  English  rule  does  not  prevail,  and  a  right 
of  action  exists  for  the  recovery  of  counsel  fees.6 
In  the  absence  of  some  express  contract  fixing 
the  amount  of  the  attorney's  compensation,  if 
an  action  is  instituted  to  enforce  payment,  it  is 
necessary  to  determine  the  value  of  the  services 
rendered,  and  in  such  an  action  an  attorney  may  be 
called  as  an  expert  to  testify  as  to  the  value  of  the 
services  in  question.6  It  has  been  well  said,  that  "the 

1  Carter  v.  Carter,  36  Mich.  207. 

2  Hitter  v.  Daniels,  47  Mich.  617. 

3  Kent  Furniture,  etc.  Co.  v.  Ransom,  46  Mich.  416. 

4  Kennedy  v.  Brown,   13   C.  B.  (N.   S.)  677;  32  L.  J.  137.    And  see 
Brown  v.  Kennedy,  33  L.  J.  Ch.  71 ;   33  Beav.  133 ;  4  D.  J.  &  S.  217. 

5  See   13  Cent.  L.  J.  43,   where   the  subject  is  considered   and  the 
cases  collected.      The   English    rule,   however,   is   still  recognized  in 
New  Jersey.     Seeley  v.  Brown,  15  N.  J.  L.  35;   Van  Atta  v.  McKinney, 
16  N.  J.  L.  235;  Schoup  v.  Schenck,  40  X.  J.  L.  195.     And  counsel  fees 
in  that  State  cannot  be  recovered  unless  an  express  contract  fixing  the 
fees  is  shown.    Hopper  v.  Linllum,  41  N.  J.  Law,  182  (1879). 

6  Harriett  v.  Garvey,  66  N.  Y.  641;  Williams  v.   Brown,  28   Ohio  St. 
547,  551 ;  New  Orleans  etc.  R.  R.  Co.  v.  Albreion,38  Miss.  242,246,273; 


THE    VALUE    OF    LEGAL    SERVICES.  381 

very  best  means  of  adjusting  this  value  are  the  opin- 
ions of  those  who,  in  earning  and  receiving  compen- 
sation for  them,  have  learned  what  legal  services  in 
their  various  grades  are  worth."1  The  opinion  of 
one  who  is  not  an  attorney  is  incompetent  to  prove 
the  value  of  an  attorney's  services.2  But  it  does  not 
seem  to  be  necessary  that  the  attorney  should  be  at 
the  time,  actually  engaged  in  the  active  practice  of  his 
profession.3  The  witness  may  base  his  opinion  in  part 
on  his  personal  knowledge,  and  in  part  on  the  testi- 
mony of  others  ; 4  and  if  he  has  no  personal  knowl- 
edge of  the  services  rendered,  his  testimony  must  be 
based  upon  a  hypothetical  question  submitted  to 
him.5  In  determining  the  value  of  the  attorney's 
services,  it  is  proper  to  show  by  the  witness,  the 
character  and  professional  standing  of  the  person 
rendering  the  services  in  question 6  as  well  as  the  na- 
ture and  importance  of  the  services  rendered.7  And 
it  is  proper  to  propound  the  following  inquiry  : 
' '  From  the  character  of  the  case  set  out  in  the  com- 
plaint filed,  what  would  be  a  reasonable  fee  for  de- 
fending said  suit?"  The  value  of  the  services  of 
counsel  under  circumstances  of  general  similarity  to 

Allis  v.  Day,  14  Miss.  510 ;  Anthoiiy  v.  Stinson,  4  Kan.  211 ;  Ottawa  Uni- 
versity v.  Parkinson,  14  Kan.  159;  Head  v.  Hargrave,  105  U.  S.  45; 
Llussman  v.  Merkle,  3  Bos.  (N.  Y.)  402;  Beekraan  v.  Platner,  15  Barb. 
(N.  Y.)  550;  Jevne  v.  Osgood,  57  111.  340;  Haish  v.  Payson,107  111.  365; 
Turnbull  v.  Richardson,  69  Mich.  400;  Kelley  v.  Richardson,  69  Mich. 
430. 

1  Thompson  v.  Boyle,  85  Pa.  St.  477. 

2  Hart  v.  Vidal,  8  Cal.  56. 

3  See  Blizzard  v.  Applegate,  61  Ind.  371. 

*  Garfield  v.  Kirk,  65  Barb.  (X.  Y.)  464;  Brown  v.  Huffard,69Mo.305. 

5  Williams  v.  Brown,  28  Ohio  St.  547,  551 :  Central  Branch,  etc.  R.  R. 
Co.  v.  Nichols,  24  Kan.  242. 

6  Jackson  v.  N.  Y.  Ceut.,  etc.  R.  R.  Co.,  2  Sup.  Ct.  653. 

7  Harland  v.  Lilienthal,  53  N.  Y.  438;  Gartield  v.  Kirk,  65  Barb.  (N. 
Y.)  464. 

8  Covey  v.  Campbell,  52  Ind.  158. 


382  EXPERT    TESTIMONY. 

those  under  which  the  services  in  question  were  ren- 
dered may  also  be  shown.1  But  what  an  attorney 
receives  in  a  case  is  no  criterion  of  the  value  of  the 
service  of  another  attorney  in  the  same  case,  in  the 
absence  of  any  showing  that  the  services  wrere  simi- 
lar, the  skill  equal,  and  the  time  spent  the  same.2 
It  has  been  held  that,  upon  the  cross-examination  of 
an  attorney  testifying  as  an  expert  in  such  cases,  it 
is  within  the  discretion  of  the  trial  court  to  reject  a 
question  as  to  the  income  derived  by  the  witness 
from  the  practice  of  his  profession.3 

An  important  question  concerning  the  value  of 
an  attorney's  services  recently  came  before  the  Su- 
preme Court  of  Michigan,  in  the  case  of  Kelley  v. 
Richardson,*  and  was  decided  by  three  judges  to  two. 
Richardson  died  possessed  of  property  aggregating 
over  a  million  of  dollars,  all  of  which  he  left  by  will 
to  his  wife.  The  plaintiff  was  employed  by  the  widow 
to  attend  to  the  probating  of  the  will  and  the  settle- 
ment of  the  estate.  He  had  the  entire  counseling 
and  managing  of  the  estate,  which  included  a  lum- 
bering plant,  composed  of  a  saw-mill  and  equipments 
valued  at  half  a  million  of  dollars.  He  spent  five 
months  in  settling  the  estate  and  then  brought  suit 
to  recover  the  value  of  his  services.  On  the  trial  he 
put  on  the  stand  certain  lawyers,  stated  in  a  hypothet- 
ical question  to  them  the  nature  of  the  services  ren- 
dered, and  asked  their  opinion  as  to  the  value  of  the 
services  rendered.  Objection  was  made  to  the  ques- 
tion on  the  ground  that  it  called  for  the  opinion  of 
lawyers  as  to  the  value  of  services  not  alone  profes- 

1  Thompson  v.  Boyle,  85  Pa.  St.  447. 

2  Ottawa  University  v.  Parkinson,  14  Kan.  160. 

3  Harland  v.  Lilienthal,  53  N.  Y.  438. 

4  69  Mich.  430.     See  also  Turnbull  v.  Richardson,  69  Mich.  400. 


THE    VALUE    OF    SERVICES.  383 

sional,  but  business  services  in  carrying  on  a  lum- 
ber   business,    and    a   saw-mill,    which   manufact- 
ured 20,000,000  feet  of  lumber  per  year,  and  the  run- 
ning of  eleven  steam  and  sail  vessels  on  the  lakes, 
and  various  other  services,  concerning  the  value  of 
which  a  lawyer,  as  such,  was  not  competent  to  tes- 
tify.    The  majority  of  the  court  held  that  the  opin- 
ions expressed  by  the  lawyers  concerning  the  value 
of  the  services  as  an  entirety  were  property  received, 
and  Mr.  Justice  Campbell  said:  "It  seems  to  us  that 
when   a  lawyer  is  employed  professionally  to  take 
entire  charge  of  matters  involving  at  the  same  time 
professional  services,  and  services  which  are  not  so 
strictly  special  that  others  than   lawyers  might  not 
perform  them,  it  is  impossible  to  draw  any  line  and 
say  that  he  is  not  employed  professionally  through- 
out."    On  the  other  hand,  the  minority  of  the  court 
thought  the  services  rendered  in  managing  the  busi- 
ness enterprises  could  not  be   considered  as  having 
been  rendered  in  a  professional  capacity,  and  that 
the  opinions  of  the  lawyers  as  to  the  value  of -such 
services  were  inadmissible,  it  not  appearing  that  they 
knew  anything  about  running  a  farm,  a  saw-mill,  or 
a  steam-boat.     Mr.  Chief  Justice  SHERWOOD,  in  his 
dissenting  opinion,  regards  the  rulings  of  the  major- 
ity of  the  court  in  this  case  "  as  breaking  down  all 
the  wholesome  barriers  between  expert  and  non-ex- 
pert testimony." 

§  159.  The  Value  of  Services  Rendered  by  Physi- 
cians and  Nurses.  —  In  a  case  decided  as  early  as 
1791,  Lord  KENYON  declared  that  he  understood  that 
the  fees  of  physicians  and  surgeons  were  merely  hon- 
orable and  not  dtmiandable  of  right.1  And  such  was 

1  Chorley  v.  Bolcot,  4  Term  R.  317. 


384  EXPERT    TESTIMONY. 

undoubtedly  the  law  of  England.1  In  this  country, 
however,  the  courts  have  not  recognized  the  English 
rule,  but  have  allowed  physicians  to  recover  the  value 
of  their  services.2  This  right  is  now  secured  to  them 
in  England  by  a  statute  adopted  in  1858.s 

As  the  value  of  services  rendered  by  lawyers  is 
shown  by  the  testimony  of  those  engaged  in  the 
same  profession,  so  the  value  of  services  rendered  by 
physicians  and  surgeons  in  the  practice  of  their 
profession  is  proven  by  the  testimony  of  their  pro- 
fessional brethren.4  And  it  has  been  laid  down  that 
one  who  is  not  a  physician  is  incompetent  to  testify 
as  to  the  value  of  medical  services.5  The  Indiana 
court  has  held  it  not  necessary  that  the  witness 
should  know  just  what  physicians  were  in  the  habit 
of  charging  for  services  similar  to  those  in  question, 
and  for  what  such  services  could  be  procured.6  In 


1  Lipscombe  v.  Holmes,  2  Camp.  441. 

1  Judah  v.  McNamee,  3  Blackf.  (Ind.)  269;  Mooney  v.  Lloyd,  5  S.  & 
B.  (Perm.)  416;  Rouse  v.  Morris,  17  S.  &  R.  (Penn.)  328;  Simmons  v. 
Means,  8S.  &  M.  (Miss.)  397;  Mock  v.  Kelly,  3  Ala.  387;  Smith  v.  Wat- 
son, 14  Vt.  332. 

3  21  and  22  Viet.  Ch.  90,  §  31.     See,  too,  Gibbon  v.  Budd,  32  L.  J.  Ex. 
182;  s.  C.,  2H.  &C.  92. 

4  Board  of  Commissioners  v.  Chambers,  75  Ind.  409;  Mestz  v.  Detwi- 
ler,  8  W.  &  S.  376;  Wood  v.  Barker,  49  Mich.  295. 

5  Mock  v.  Kelly,  3  Ala.  387.    And  see  Wood  v.  Brewer,  57  Ala.  515. 

6  Board  of  Commissioners  v.  Chambers,  75  Ind.  409.     In  this  connec- 
tion it  is  interesting  to  note  the  language  of  the  Supreme  Court  of  Min- 
nesota in  Elfelt  v.   Smith,  1  Minn.  126:  "The  value  of  services  upon  a 
quantum  mei~uit  stands  in  regard  to  the  proof,  upon  the  same  principle  as 
to  the  value  of  chattels  upon  a  quantum  valebant.   The  value  of  chattels  in 
such  a  case  is  always  regulated  by  the  usual  market  value  of  such  chat- 
tels, of  like  quality,  at  the  time  and  place  of  sale;  and  before  a  witness 
can,    in   such  a  case,    be  permitted  to  testify   to  such  value,  it    must 
appear  by  his  own,  or  other  competent  evidence,  that  he  knows  with- 
reasonable  certainty  what  such  usual  or  market  value  is.     He  then  testi- 
fies to  the  value  as  a  fact,  and  not  as  a  mere  matter  of  opinion.     So  in 
regard  to  service;  it  must  appear  that  the  witness  knows  the  usual  value 
of,  or  rate  of  compensation  paid  for  such  or  the  like  services  at  the  time 


THE    VALUE    OF    SERVICES.  385 

that  case  the  facts  were  as  follows:  Certain  physi- 
cians were  called  to  testify  as  to  the  value  of  the  serv- 
ices of  a  physician  in  making  a  post-mortem  examin- 
ation under  the  employment  of  a  coroner.  The 
witnesses  testified  on  their  direct  examination  that 
they  were  physicians  and  surgeons,  and  considered 
themselves  competent  to  testify  as  to  the  value  of 
services  rendered  in  making  post-mortem  examina- 
tions. But  it  appeared  on  their  cross-examination 
that  they  did  not  know  what  physicians  had  charged 
for  making  such  examinations,  and  that  they  knew 
nothing  of  the  prices  at  which  such  services  could 
be  procured,  but  formed  their  judgment  of  the  value 
of  the  services  from  what  they  thought  such  services 
would  be  worth.  The  court  held  it  proper  that  their 
testimony  should  be  received,  saying  :  "  The  testi- 
mony was  competent,  for  the  witnesses^were  shown 
to  be  experts,  and  to  possess  such  knowledge,  skill 
and  acquaintance  with  the  subject  under  investiga- 
tion as  entitled  them  to  express  their  opinions  to  the 
jury.  They  may  have  had  some  knowledge  of  the 
value  of  such  services,  without  knowing  anything1 
at  all  about  what  others  were  charging  for  like  serv- 
ices." 

In  an  action  by  a  physician  to  recover  for  medical 
services,  it  is  competent  for  him  to  prove  the  nature 
of  the  disease,  and  the  character  of  the  treatment 
given;  and  one  court  in  New  York  has  held  that 
such  evidence  is  not  rendered  incompetent  by  the 
provision  of  the  statute,  forbidding  the  disclosure 
of  confidential  communications  made  by  a  patient 
to  a  physician.1 

when,  and  the  place  where,  they  were  rendered,  before  he  can  be  prop- 
erly permitted  to  testify  what  such  value  or  rate  is." 
i  Kendall  v.  Gray,  2  Hilton  (N.  Y.),  302. 

(25) 


386  EXPERT    TESTIMONY. 

/ 

As  to  the  value  of  services  rendered  in  nursing 
and  caring  for  the  sick,  the  rule  is  that  the  wit- 
nesses should  be  persons  who  have  had  experience 
in  nursing  and  caring  for  the  sick.  Physicians1 
and  nurses2  are  competent  witnesses  in  such  cases. 
And  it  has  been  held  that  one  who  had  long 
had  the  care  of  an  insane  person,  and  provided 
for  his  table,  and  who  had  been  for  a  considerable 
period  of  time  in  another  family  while  such  person 
was  boarding  there,  was  qualified  to  express  an  opin- 
ion as  to  the  value  of  taking  care  of  him  and  board- 
ing him  at  the  latter  place.3 

§  160.  Value  of  Annuities.  —  Stockbrokers  who 
have  been  engaged  in  buying  and  selling  life  annui- 
ties, and  who  have  thereby  become  acquainted  with 
the  value  and  market  price  of  annuities,  have  been  al- 
lowed to  testify  as  to  the  market  price  of  an  annuity 
for  the  life  of  a  person  of  a  certain  age.4  So,  actua- 
ries, experienced  in  the  business  of  life  insurance, 
are  permitted  to  testify  as  to  the  value  of  an  annuity.5 
And  an  accountant,  who  was  acquainted  with  the 
business  of  insurance  companies,  has  been  examined 
as  to  the  average  duration  of  human  lives.6  With 
the  view  of  ascertaining  the  probable  duration  of  a 
particular  life  at  a  given  age,  it  is  material  to  know 

1  Woodward  v.  Bugsbee,  4  N.  Y.  Sup.  Ct.  393;  Reynolds  v.  Robinson, 
64  X.  Y.  589;  Shafer  v.  Dean's  Admr.,  29  Iowa,  144. 

2  Shafer  v.  Dean's  Admr.,  29  Iowa,  144. 

3  Kendall  v.  May,  10  Allen  (Mass.),  59. 

4  Heathcote  v.  Paignon,  2  Brown's  Ch.  167, 169. 

5  Ex  parte  Whitehead,  1  Merivale,  127, 128;  Ex  parte  Thistlewood,  19 
Vesey,  235;  Heathcote  v.  Paignon,   2  Brown's  Ch.  167, 169;  Griffith  v. 
Spratley,  1  Cox  Ch.  389. 

6  Rowley  v.  London,  etc.  R.  R.  Co.,  8  Ex.  (L.  R.)  221.    In  the  case 
cited,  Brett,  J.,  did  not  think  it  necessary  to  say  whether  such  a  witness 
was  competent,  but  thought  it  doubtful,   as  he  was   not  an  actuary. 
Blackburn,  J.,  said  that  as  he  gave  evidence  that  he  was  experienced  in 
the  business  of  life  insurance,  his  opinion  was  admissible. 


VALUE    OF    ANNUITIES.  387 

what  is  the  average  duration  of  the  life  of  a  person 
of  that  age.  "  The  particular  life  on  which  an  an- 
nuity is  secured  may  be  unusually  healthy,  in  which 
case  the  value  of  the  annuity  would  be  greater  than 
the  average,  or  it  may  be  unusually  bad,  in  which 
case  the  value  would  be  less  than  the  average  ;  but  it 
must  be  material  to  know  what,  according  to  the  expe- 
rience of  insurance  companies,  the  value  of  an  annuity 
secured  on  an  average  life  of  that  age  would  be. "  For 
the  purpose  of  determining  this,  the  witnesses  are 
permitted  to  refer  to  standard  tables  used  by  insur- 
ance companies  in  the  course  of  their  business.1 
And  it  has  been  held  that  the  Carlisle  Tables  of 
Mortality,  being  standard  tables  on  this  subject,  are 
admissible  evidence  for  the  purpose  of  showing  the 
expectation  of  life  at  a  particular  age.2  The  North- 
ampton Tables  have  been  received  for  the  same  pur- 
pose.3 And  in  a  recent  case  in  Kentucky,  in  deter- 
mining the  value  of  the  potential  right  of  dower,  the 
court  adopted  the  table  prepared  by  Professor  Bow- 
ditch  on  that  subject,  declaring  that  it  furnished  a 
safer  and  more  convenient  guide  than  the  opinions 
of  witnesses.4  This  subject  is  considered  more  fully 
in  another  portion  of  this  work.5 

For  the  purpose  of  determining  the  value  of  the 
life  of  a  decedent,  an  expert  may  be  asked:  "From 
your  knowledge  of  the  decedent's  age,  habits, 
health,  and  physical  condition,"  how  long,  in  your 

1  See  Davis  v.  Marlborough,  2  Swanson,  113,  150;  Nicholas  v.  Gould,  2 
Vesey,423;  Rowley  v.  London,  etc.  R.  Co.,  supra. 

2  Donaldson  v.  Mississippi,  etc.  R.  R.  Co.,  18  Iowa,  281;  Simonson  v. 
C.,  R.  I.  &  P.  R.  Co.,49  Iowa,  87. 

3Schell  v.  Plumb,  55  N.  Y.  598;  Sauter  v.  N.  Y.  Cent.  R.  R.  Co., 
13  N.Y.  Sup.  Ct.  451;  Wager  v.  Schuyler,  1  Wend.  (N.Y.)  553;  Jackson 
v.  Edwards,  7  Paige  Ch.  (N.  Y.)  386,  408. 

4  Lancaster  v.  Lancaster's  Trustees,  78  Ky.  200. 

5  See  section  163. 


388  EXPERT  TESTIMONY. 

opinion,  would  he  have  been  useful  to  his  family  ? l 
An  expert  in  life  insurance  may  be  asked  as  to  the 
relative  hazard  of  different  occupations.2 

§  161.  Value  of  Foreign  Currency  and  Neg  otiable 
Securities. — In  order  to  ascertain  what  is  the  lawful 
money  of  a  foreign  country  it  is  considered  unneces- 
sary that  the  lawr  of  such  country,  regulating  the 
subject,  should  be  produced.3  And  witnesses  who 
have  had  business  transactions  in  such  country, 
having  had  occasion  in  that  way  to  learn  the  value 
of  the  currency  in  common  use,  are  competent  to 
testify  as  to  such  value,  and  to  state  its  equivalent 
in  our  own  currency.4  So  it  has  been  held  that  the 
value  of  the  stock  of  a  railroad  company  at  a  speci- 
fied date,  could  be  shown  by  the  testimony  of  one 
who  dealt  in  such  stock  at  or  near  that  date.5  And 
it  has  even  been  held  that  the  testimony  of  a  witness 
as  to  the  market  value,  at  a  somewhat  remote  period 
of  negotiable  securities,  was  competent  and  suffi- 
cient prima  facie  evidence,  although  it  was  founded 
on  a  general  recollection  based  on  his  keeping  the 
run  of  the  market  price  in  consequence  of  being  very 
much  interested  in  the  company  which  issued  the 
securities.6 

1  Pennsylvania  Railroad  Co.  v.  Henderson,  51  Pa.  St.  320. 

2  Hartman  v.  Keystone  Ins.  Co.,  21  Pa.  St.  478. 

3  Comstock  v.  Smith,  20  Mich.  338. 

4  Kermott  v.  Ayer,  11  Mich.  181;  Comstock  v.  Smith,  supra. 
8  Noonan  v.  Ilsley,  22  Wis.  27. 

6  Smith  v.  Frost,  42  N.  Y.  Superior  Ct.  87. 


RELATION    OF    SCIENTIFIC    WORKS.  389 


CHAPTER  IX. 

THE    RELATION    OF    SCIENTIFIC    BOOKS    TO    EXPERT 
TESTIMONY. 


SECTION. 

162.  The  Relation  of  Scientific  Works  to  Expert  Testimony. 

163.  The  Admissibility  in  Evidence  of  Certain  Scientific  Works. 

164.  The  Inadmissibility  in  Evidence  of  Opinions  and  Statements 

Contained  in  Standard  Treatises  on  Inexact  Sciences — The 
Rule  in  England. 

165.  Their  Admissibility  in  Some  States  of  this  Country. 

166.  Their  Inadmissibility  in  Evidence  is  the  General  Rule  in  the 

United  States. 

167.  Their  Inadmissibility  in  California. 

168.  Their  Inadmissibility  in  Illinois,  Indiana  and  Kansas. 

169.  Their  Inadmissibility  in  Maine,  Maryland  and  Massachusetts. 

170.  Their  Inadmissibility  in  Michigan  and  Mississippi. 

171.  The  Doctrine  in  New  Hampshire  and  New  York. 

172.  Their  Inadmissibility  in  North  Carolina  and  Rhode  Island. 

173.  Their  Inadmissibility  in  Wisconsin. 

174.  The  Reasons  Why  Such  Books  Should  not  be  Received  in  Evi- 

dence. 

175.  Views  of  Writers  on  Medical  Jurisprudence  on  the  Question. 

176.  Their  Inadmissibility  for  Purposes  of  Contradiction. 

177.  The  Rights  of  the  Witness  to  Refer  to,  or  Cite  Standard  Author- 

ities. 

178.  Reading  from  Authorities  and  Asking  the  Witness  Whether  he 

Agrees  with  the  Extracts  Read. 

179.  Reading  from  Scientific  Books  in  Argument. 

180.  The  Rule  in  England  on  the  Subject. 

181.  Cases  in  the  United  States  Denying  to  Counsel  the  Right  to 

Read  in  Argument  from  Scientific  Books. 

182.  Cases  Sometimes  Cited  as  Supporting  the  Rights  of  Counsel  so 

to  Do. 


390  EXPERT  TESTIMONY. 

183.  Cases  Deciding  that  Counsel  may  Read  from  Scientific  Books  in 

Argument. 

184.  Reading  the  Testimony  of  Experts  as  Contained  in  Official  Re- 

ports. 

§  162.  The  Relation  of  Scientific  Works  to  Ex- 
pert Testimony. — As  we  have  already  seen,1  experts 
are  permitted  to  express  opinions  on  subjects  con- 
nected with  their  particular  departments  of  science, 
or  of  art,  although  their  opinions  are  based  on  infor- 
mation derived  by  them  from  the  study  of  books,  and 
not  from  their  own  experience  or  observation  of  like 
cases.  They  are  also  permitted  to  refresh  their  memo- 
ries by  the  use  of  standard  authorities.2  But  a  marked 
distinction  exists  between  permitting  a  witness  to 
refresh  his  memory  by  reference  to  an  authority  or 
writing,  and  the  introduction  of  the  writing  itself  in 
evidence.  It  may  be  wholly  improper  that  the  writ- 
ing should  be  introduced  in  evidence,  and  yet  en- 
tirely proper  for  the  witness  to  refresh  his  recollec- 
tion by  a  reference  to  it.  An  equally  well-marked 
distinction  exists  between  the  admissibility  of  opin- 
ions based  on  a  study  of  authorities,  of  standard 
writings,  and  the  reception  of  the  writings  them- 
selves in  evidence.  It  is  fair  to  assume  that  the  ex- 
pert has  weighed  the  assertions  and  opinions  of  the 
different  authorities,  and  that  he  has  reached  an  in- 
dependent judgment  thereon.  The  opinion  which 
he  expresses  is  given  in  a  court  of  justice,  and  un- 
der the  solemnity  of  an  oath.  While  it  can  hardly 
be  presumed  that  a  standard  writer  would  give  ex- 
pression in  his  public  writings  to  a  dishonest  opin- 
ion, yet  the  fact  remains  that  the  opinion  was  not 

1  See  section  19. 

2  Taylor  on  Evidence,  1230;  1   Wharton's  Ev.  438  ;  Hoffman  v.  Click 
77  N.  C.  555. 


SCIENTIFIC    WORKS.  391 

expressed  under  oath,  and  may  have  subsequently 
been  modified.  The  writer  is  not  presented  in  court; 
no  opportunity  is  given  for  his  cross-examination, 
and  the  jury  cannot  observe  the  witness.  The  ques- 
tion, therefore,  arises,  are  scientific  works  admissible 
in  evidence?  Can  the  opinions  of  scientific  writers, 
as  expressed  in  their  writings,  be  received  in  evidence 
as  the  opinions  of  experts,  or  must  the  writers  them- 
selves be  called  as  witnesses,  and  give  expression  to 
their  opinions  under  oath,  in  the  presence  of  the 
court,  the  jury,  and  the  parties?  This  is  an  impor- 
tant question  to  be  presently  considered. 

§  163.  The  Admissibility  in  Evidence  of  Certain 
Scientific  Works. — Before  proceeding  to  the  consid- 
eration of  the  question  suggested  in  the  preceding 
section  it  is  necessary  to  understand  that  there  are 
certain  scientific  works  to  which  the  question  alluded 
to  in  the  preceding  section  does  not  relate,  and  con- 
cerning the  admissibility  of  which  in  evidence  no 
doubt  exists.  These  are  books  that  relate  to  the  ex- 
act sciences,  or  such  as  by  long  use  in  the  practical 
affairs  of  life  have  come  to  be  recognized  by  all  hav- 
ing occasion  to  use  them  as  standard  and  unvary- 
ing authority  in  determining  the  action  of  such  per- 
sons.1 To  this  class  belong  almanacs,  astronomical 
calculations,  tables  of  logarithms,  mortuary  tables 
for  estimating  the  probable  duration  of  life  at  a  given, 
age,  tables  of  weights  and  measures,  and  of  currency, 
chronological  tables,  interest  tables,  and  annuity 
tables.  The  rule  is  well  established  that  standard 
tables  of  mortality  may  be  received  in  evidence  for 
the  purpose  of  showing  the  expectation  of  life  at  a 

1  Tucker  v.Donald,  60  Miss.  460, 470;  Gallagher  v.  M  arket  St.  Ky.  Co. 
67  Cal.  13,  16. 


392  EXPERT  TESTIMONY. 

particular  age.1  Other  instances  in  which  scientific 
tables  and  works  have  been  received  in  evidence, 
may  be  briefly  noticed.  Thus,  in  a  casein  the  May- 
or's Court  of  New  York,  in  the  year  1816,  it  was  held 
that  tide-tables  could  be  received  for  the  purpose  of 
showing  that  the  time  of  high  water  at  New  York 
and  New  London  was  the  same.2  In  a  recent  case  in 
New  York  when  the  question  was  as  to  the  grinding 
capacity  of  a  certain  quantity  of  water  at  a  mill  the 
capacity  was  ascertained  from  Leffel's  tables.  The 
court  said:  "We  think  the  united  acquiescence  of 
mill- wrights  in  the  accuracy  of  these  tables,  and  in 
the  results  of  computation  founded  upon  them,  may 
be  treated  as  the  common  knowledge  of  the  men  of 
that  profession,  and  their  computations  so  made  as 
competent  evidence." 

It  has  been  held,  too,  in  this  country,  that  a  rec- 
ord of  the  weather,  kept  for  a  number  of  years  at  the 
State  Insane  Asylum,  was  competent  evidence  to 
prove  the  temperature  of  the  weather  on  a  given 
day  included  in  such  record.4 

There  are  a  few  cases  in  which  the  admissibility 
of  almanacs  has  been  considered.  The  almanac  is 


1  Vicksburg,  etc.  E.  R.  Co.  v.  Putnam,  118  U.  S.554;  McKeigue  v.  City 
of  Janesville,  68  Wis.  59;    Donaldson  v.  Mississippi,  etc.  R.  R.  Co.,  18 
Iowa,  281 ;  Schell  v.  Plumb,  55  X.  Y.  598;  Sauterv.  X.  Y.  Cent.  &  H.  R. 
R.  Co.,  13  X.  Y.  Sup.  Ct.  451;  Wager  v.  Schuyler,  1  Wend.  (X.  Y.)  553; 
Jackson  v.  Edwards,  7  Paige  Ch.  386,  408;  People  v.  Security  Life  Ins. 
Co.,  78  X.  Y.  114,  128:   Berg  v.  Chicago,  etc.  R.  R.  Co.,  50  Wis.  427; 
Mulcairns  v.  Janesville,  67  Wis.  24 ;  Central  Railroad  v.  Richards,  62  Ga. 
306;  McDonald  v.  Chicago,  etc.  R.  R.  Co.,  26  Iowa,  124, 140;  Rowley  v. 
London,  etc.  R.  R.  Co.,  L.  It.  8.  Exch.  221.     In  Worden   v.  Humeston, 
etc.  R.  R.  Co.,  76  Iowa,  310,  the  Carlisle  life- tables  as  found  in  the  En- 
cyclopedia Britanica  were  received.  See  Howell's  (Mich.)  Stat.  p.  1048. 

2  Green  v.  Aspinwall,  1  City  Hall  Recorder,  14. 

3  Garwood  v.  X.  Y.  Central,  etc.  R.  R.  Co.,  45  Hun,  128  (1887). 

4  De  Annaud  v.  Xeasmith,  32  Mich.  231. 


SCIENTIFIC    WORKS. 


393 


said  to  be  a  part  of  the  law  of  England,1  but  the 
almanac  which  is  a  part  of  the  law  of  England 
is  the  one  annexed  to  the  common  Prayer  Book,* 
and  that  contains  nothing  about  the  rising  or 
setting  of  the  sun.3  While  courts  take  judicial 
notice  *  of  the  time  the  sun  or  moon  rises  and  sets 
on  the  several  days  of  the  year,  they  will  allow  an 
almanac  to  be  introduced  in  evidence  in  cases  when 
it  becomes  important  to  fix  the  time  referred  to.  In 
a  case  in  Maryland,  where  it  was  material  to  prove  at 
what  hour  the  moon  rose  on  a  certain  night,  the  trial 
court,  against  objection,  allowed  Gruber's  almanac 
to  be  received  in  evidence  for  the  purpose  of  proving 
the  fact  in  question.  The  Supreme  Court  held  no 
error  had  been  committed.5  In  Connecticut  it  was 
held  no  error  to  allow  Beckwith's  almanac  to  be  re- 
ceived in  evidence  where  the  question  was  as  to  the 
hour  of  sun  set  on  a  given  day.8  And  in  the  same 
way  Jayne's  almanac  was  introduced  in  evidence 
in  Xew  York  to  show  the  time  of  the  rising  of  the 
moon.7  But  as  these  are  matters  of  which  the  courts 
take  judicial  notice  the  almanacs  thus  received  in 
evidence  are  not  used  strictly  as  evidence,  but  rather 
for  the  purpose  of  refreshing  the  memory  of  the  court 

1  Regina  v.  Dyer,  6  Mod.  41. 

2  Brough  v.  Perkins,  6  Mod.  81. 

5  See  Tutton  v.  Darke,  5  Hurl.  &  Norman,  647,  649. 

4  People  v.  Cheekee,  61  Cal.  404. 

5  Muushower  v.  The  State,  55  Md.  11,  24.    The  court  say:  "An  alma- 
nac forecasts  with  exact  certainty  planetary  movements.    We  govern 
our  daily  life  by  reference  to  the  computations  which  they  contain.   No 
oral  evidence  or  proof  which  we  could  gather  as  to  the  hours  of  the  ris- 
ing or  setting  of  the  sun  or  moon  could  be  as  certain  or  accurate  as  that 
which  we  may  obtain  from  such  a  source.    Why,  then,  should  not  these 
computations,  which  are,  after  all,  but  parts  of  th«  ordinary  computa- 
tions of  the  calendar,  be  admitted  as  evidence?" 

6  State  v.  Morris,  47  Conn.  179. 

7  Case  v.  Perew,  46  Hun  (X.  Y.),  57. 


394  EXPERT   TESTIMONY. 

and  the  jury.  In  a  recent  case  in  Pennsylvania 
counsel  was  allowed  in  his  argument  to  the  jury  to 
refer  to  an  almanac  to  show  that  a  certain  day  of 
the  month  given  in  the  testimony  of  a  witness  was 
a  certain  day  of  the  week,  though  the  almanac  was 
not  proved  and  put  in  evidence.  It  was  not  neces- 
sary to  put  it  in  evidence  as  judicial  notice  could  be 
taken  of  it.1  Courts  take  judicial  notice  of  the  days 
of  the  week.2 

§  164.  The  Admissibility  in  Evidence  of  Opinion 
and  Statements  Contained  in  Standard  Treatises  on 
Inexact  Sciences — Rule  in  England. — It  is  evident 
that  a  distinction  may  properly  be  taken  between 
standard  works  on  exact  sciences  and  similar  works 
on  inexact  sciences,  and  that  it  does  not  necessarily 
follow  that  because  the  former  are  received  in  evi- 
dence that  the  latter  should  be  likewise  admitted. 
It  remains,  therefore,  for  us  to  consider  whether  or 
not  the  latter  are  admissible  in  evidence.  Whether 
scientific  treatises  on  inexact  sciences  may  be  re- 
ceived in  evidence  is  a  question  which  has  generally 
been  raised  in  cases  where  an  effort  has  been  made 
to  introduce  as  evidence  the  opinions  expressed  in 
medical  treatises.  So  far  as  England  is  concerned 
the  question  seems  to  be  regarded  as  having  been 
definitely  settled  against  their  admissibility  in  1831 
in  the  leading  case  of  Collier  v.  Simpson.3  The  case 
was  one  of  slander,  a  physician  having  been  charged 
with  prescribing*  improper  medicines.  The  follow- 
ing is  the  report  of  the  case  : 

"Wilde,  Sergt.,  proposed  to  show  that  the  pre- 

1  Wilson  v.  Van  Leer,  127  Pa.  St.  372. 

2  Mclntosh  v.  Lee,  57  Iowa,  358;    Reed  v.  Wilson,  41   N.  J.  Law,  29; 
Railroad  Co.  v.  Lehman,  56  Md .  226. 

3  5  Car  &  Payne,  73 ;  s.  c.,  24  Eng.  C.  L.  219. 


ADMISSIBILITY    IX    SOME    STATES.  395 

scriptions  were  proper,  and  the  dose  not  too  large; 
and  wished  to  put  in  medical  books  of  authority,  to 
show  what  was  the  received  opinion  in  the  medical 
profession." 

"Tindal,  C.  J. — I  think  I  cannot  receive  medical 
books." 

"Whightman. — When  foreign  laws  are  to  be 
proved,  it  frequently  happens  that  a  witness  pro- 
duces a  foreign  law  book,  and  states  it  to  be  a  book 
of  authority." 

"Tindal,  C.  J. — Physic  depends  more  on  practice 
than  law.  I  think  you  may  ask  a  witness,  whether 
in  the  course  of  his  reading  he  has  found  this  laid 
down . ' ' 

"Sir  H.  Halford,  the  president  of  the  college  of 
physicians,  was  called.  He  stated  that  he  consid- 
ered the  medicine  proper,  and  that  it  was  sanctioned 
by  books  of  authority.  He  stated  that  the  writings 
of  Dr.  Merriman  and  Sir  Astley  Cooper  were  con- 
sidered of  authority  in  the  medical  profession." 

"Bompas,  Sergt. — I  submit  that  medical  books 
cannot  be  cited — more  especially  those  of  living 
authors.  Sir  Astley  Cooper  and  Dr.  Merriman 
might  be  called." 

"Wilde,  Sergt. — I  wish  to  show  that  these  books 
are  acted  upon  by  persons  in  the  medical  profession . ' ' 

"Tindal,  C.  J. — I  do  not  think  that  the  books 
themselves  can  be  read;  but  I  do  not  see  any  objec- 
tion to  your  asking  Sir  Henry  Halford  his  judgment 
and  the  grounds  of  it,  which  may  be,  in  some  de- 
gree, founded  on  books,  as  a  part  of  his  general 
knowledge." 

§  165.  Their  Admissibility  in  Some  States  of  this 
Country. — The  earliest  case  in  the  United  States 


396  EXPERT  TESTIMONY. 

recognizing  the  right  to  introduce  medical  treatises 
in  evidence,  so  far  as  we  have  been  able  to  discover, 
was  decided  in  Iowa  in  1848.  In  an  action  for  mal- 
practice, the  defendant  offered  certain  medical  books 
in  evidence  which  the  experts  had  pronounced 
standard  works.  They  were  excluded  by  the  trial 
court,  but  the  Supreme  Court,  while  conceding  that 
the  ruling  of  the  lower  court  was  in  conformity  to 
the  prevailing  decisions  of  the  English  courts,  re- 
versed the  judgment.  The  court  said:  "Physi- 
cians, when  testifying,  are  permitted  to  refer  to 
medical  authors,  and  to  quote  their  opinions  from 
memory.  Being  permitted  to  refer  to  and  quote 
authors,  we  can  see  no  good  reason  why  they  may 
not  read  the  views  and  opinions  of  distinguished 
authors.  The  opinions  of  an  author,  as  contained 
in  his  works,  we  regard  as  better  evidence  than  the 
mere  statement  of  those  opinions  by  a  witness,  who 
testifies  as  to  his  recollection  of  them  from  former 
reading.  Is  not  the  latter  secondary  to  the  former? 
On  the  whole,  we  think  it  the  safest  rule  to  admit 
standard  medical  books  as  evidence  of  the  author's 
opinions  upon  questions  of  medical  skill  or  practice, 
involved  in  a  trial.  This  rule  appears  to  us  the 
most  accordant  with  well  established  principles  of 
evidence."1  The  Iowa  court  has  since  adhered  to 
this  ruling,  once  in  1865,2  and  again  in  1887,3  when 
the  court  declared  that  it  was  not  competent  to  ask 
a  physician,  on  his  examination-in-chief,  what  cer- 
tain medical  authorities  taught,  on  a  given  point, 
adding:  "But  the  works  themselves  were  admissi- 
ble in  evidence,  and  they  are  the  only  competent 

1  Bowman  v.  Woods,  1  G.  Green,  441,  445. 

2  Donaldson  v.  The  Mississippi,  etc.  R.  R.  Co.,  18  Iowa,  291. 

3  State  v.  Winter,  72  Iowa,  627. 


ADMISSIBILITY    IX    SOME    STATES.  397 

evidence  of  what  they  teach."  In  a  case  decided 
in  1878,  the  same  court  held  that  a  trial  court  had 
not  been  guilty  of  error  in  excluding  from  evidence 
a  certain  herd  book,  saying  that  "without  some 
proof  that  its  correctness  was  recognized  by  cattle 
breeders,"  it  was  clearly  inadmissible.1 

The  question  we  are  now  considering  was  raised 
in  Alabama  in  1857,  eight  years  after  the  Supreme 
Court  of  Iowa  had  decided  that  standard  medical 
books  could  be  admitted  in  evidence.  In  the 
Alabama  case,  an  extract  from  a  standard  treatise 
on  venereal  diseases  was  offered  in  evidence  for  the 
purpose  of  showing  that  a  certain  venereal  disease, 
when  in  its  secondary  or  tertiary  form,  could  not  be 
communicated  from  one  person  to  another  by  con- 
tact. The  trial  court  received  the  evidence,  and 
the  Supreme  Court  of  Alabama,  following  the  lead 
of  the  Iowa  court,  held  that  no  error  had  been  com- 
mitted, dismissing  the  English  case  of  Collier  v. 
Simpson,  already  referred  to,  with  the  remark,  "that 
was  a  case  at  nisi  prius,  and  passed  off  with  little  or 
no  examination. ' '  The  Alabama  court  thought  that 
inasmuch  as  judges,  in  determining  questions  of 
law,  had  a  right  to  consult  standard  legal  authors, 
that  a  jury  should  have  the  benefit  of  the  opinions- 
of  standard  medical  authors  to  enable  them  to  reach 
sound  conclusions  on  questions  of  medical  science. 
"Can  that  be  a  sound  rule  which,  in  the  determina- 
tion of  a  question  involved  in  one  science,  allows  to- 
the  trying  body  the  light  shed  upon  it  by  the  writ- 
ings of  its  standard  authors,  and  withholds  such 
lights  from  controversies  respecting  all  other  sciences? 
We  think  not."2  The  conclusion  thus  reached  has 

1  Crawford  v.  Williams,  48  Iowa,  247,  249. 

2  Stondenmeier  v.  Williamson,  29  Ala.  558,  565. 


398  EXPERT  TESTIMONY. 

been  adhered  to  since,  once,  in  1861, l  and  again  in 
1879.2 

§  166.  Their  Inadmissibility  in  Evidence  is  the 
General  Rule  in  the  United  States. — Notwithstand- 
ing the  opinions  of  a  few  of  the  State  courts  to  the 
contrary,  the  general  rule,  as  established  by  the 
weight  of  authority  in  this  country,  is  that  standard 
medical  and  scientific  works  are  inadmissible  in  evi- 
dence as  proof  of  the  declarations  or  opinions  which 
they  contain .  The  rule,  however,  has  its  exceptions, 
to  be  considered  later  on.  The  question  has  now 
been  raised  so  many  times,  and  the  current  of  au- 
thority is  so  strongly  in  that  direction,  that  we  feel 
justified  in  saying  that  a  general  rule  has  been  es- 
tablished on  this  subject,  and  that  it  forbids  the  re- 
ception of  such  works  in  evidence.  The  rule  in 
England  and  in  the  United  States  is  one  and  the 
same  in  relation  to  the  matter.  The  cases  on  the 
subject  are  for  the  most  part  very  recent,  and  the 
wonder  is  that  so  important  a  question  was  not 
earlier  brought  to  the  attention  of  the  courts  and 
conclusively  settled. 

§  167.      Their  Inadmissibility  in   California. — The 

Supreme  Court  of  this  State  has  decided  that  med- 
ical books  are  inadmissible  in  evidence.  In  a  case 
before  the  court  in  1882,  Mr.  Justice  McKiNSTRY 
stated  that  such  books  were  not  admissible  as  evi- 
dence.3 The  question,  however,  was  not  squarely 
presented  in  that  case,  and  the  opinion  then  ex- 
pressed was  only  a  dictum.  But  in  1885  the  ques- 
tion was  fairly  before  the  court,  and  it  was  decided 
that  in  an  action  to  recover  damages  for  personal 

1  Merkle  v.  State,  37  Ala.  139. 

2  Bates  v.  State,  63  Ala.  30. 

3  People  v.  Wheeler,  60  Cal.  581,  584. 


ILLINOIS,    INDIANA    AND    KANSAS.  399 

injuries,  a  medical  book,  although  proved  to  be  of 
standard  authority,  was  inadmissible  in  evidence  to 
prove  the  nature  and  probable  effect  of  the  injuries. 
The  court  held  that  such  books  were  inadmissible 
both  under  the  rule  of  the  common  law  and  under 
the  California  Code  of  Civil  Procedure,  which  con- 
tained a  provision  making  "historical  works,  books 
of  science  or  art,  and  published  maps  or  charts, 
when  made -by  persons  indifferent  between  the  par- 
ties, *  *  *  prima  facie  evidence  of  facts  of  gen- 
eral notoriety  and  interest."  Construing  this  pro- 
vision of  the  code  the  court  said:  "What  are  'facts 
of  general  notoriety  and  interest?'  We  think  the 
terms  stand  for  facts  of  a  public  nature,  either  at 
home  or  abroad,  not  existing  in  the  memory  of  men, 
as  contradistinguished  from  facts  of  a  private  nature 
existing  within  the  knowledge  of  living  men,  and  as 
to  which  they  may  be  examined  as  witnesses.  It  is 
of  such  public  facts,  including  historical  facts,  facts 
of  the  exact  sciences,  and  of  literature  or  art,  when 
relevant  to  a  cause  that,  under  the  provisions  of  the 
code,  proof  may  be  made  by  the  production  of  books 
of  standard  authority."  Medicine  is  not  one  of  the 
exact  sciences,  and  is  based  on  data  which  each  suc- 
cessive year  may  correct  and  expand.  What  is  con- 
sidered a  sound  induction  one  year  is  liable  to  be 
considered  an  unsound  one  the  next  year,  and  med- 
ical books  are  altered  in  material  features  from  edition 
to  edition.  It  was,  therefore,  thought  that  such 
books  should  not  be  received  in  evidence.1 

§  168.  Their  Inadmissibility  in  Illinois,  Indiana 
and  Kansas. — Twenty  years  after  Collier  v.  Simpson 
was  decided  in  England,  the  question  came  up  in 

1  Gallagher  v.  Market  St.  Ry.  Co.,  67  Cal.  13. 


400  EXPERT  TESTIMONY. 

Indiana,  and  the  authority  of  that  case  was  fully 
recognized  and  followed.  The  circumstances  were 
as  follows:  It  was  proposed  to  have  a  physician 
testify  as  to  the  effects  of  poison  upon  the  human 
system,  his  information  being  derived  from  standard 
medical  treatises.  Thereupon  the  objection  was 
made  that  his  evidence  was  not  admissible,  but  that 
the  authors  themselves  should  be  produced  as  wit- 
nesses, or  if  dead,  that  their  books  should  be  offered 
in  evidence.  The  court  held  that  the  books  could 
not  be  received,  but  that  the  opinions  of  a  physician 
based  on  them  were  admissible.1 

In  1885  the  court  was  urged  to  adopt  a  different 
rule,  counsel  contending  that  the  decision  previously 
reached  was  "against  reason  and  enlightened  view 
of  public  justice."  But  this  the  court  declined  to 
do.' 

In  a  case  before  the  Supreme  Court  of  Illinois  in 
1884,  Mr.  Justice  SCHOLFIELD  declares  that  "the 
weight  of  current  authority  is  decidedly  against  the 
admission  of  scientific  books  in  evidence  before  a 
jury,  although  in  some  States  they  are  admissible." 

And  so  in  a  case  before  the  Supreme  Court  of 
Kansas  in  1886,  that  court  also  declares  that,  "al- 
though the  courts  are  not  uniform  in  their  holdings 
upon  the  admissibility  in  evidence  of  medical  and 
scientific  books,  the  great  weight  of  authority  is  that 
they  cannot  be  admitted  to  prove  the  declarations 
or  opinions  which  they  contain."4 


1  Carter  v.  State,  2  Ind.  619. 

2  Epps  v.  State,  102  Ind.  539,  549. 

3  City  of  Bloomington  v.  Shrock,  110  111.  219,221.     See  also  Forest 
City  Ins.  Co.  v.  Morgan,  22  111.  App.  Ct.  Rep.,  199,  202  (1886). 

4  State  v.  Baldwin,  36  Kan.  2,  17. 


MAINK,     MARYLAND    AND    MASSACHUSETTS.         401 

§  169.  Their  Inadmissibility  iu  Maine,  Maryland 
and  Massachusetts. — The  question  was  first  con- 
sidered in  this  country  in  the  Supreme  Court  of 
Maine,  and  it  is  somewhat  curious  that  the  subject 
was  disposed  of  in  this  State  in  the  same  year  in 
which  Collier  v.  Simpson  was  decided  in  England, 
and  that  a  similar  conclusion  was  reached  in  both 
cases,  each  court  being  ignorant  of  the  ruling  of  the 
other.  The  question  was  carefully  considered,  and 
much  stress  was  laid  on  the  fact  that  the  reception 
of  such  works  would  be  to  receive  evidence  not  sanc- 
tioned by  an  oath,  without  any  opportunity  for 
cross-examination,  which  was  justly  deemed  a  matter 
of  great  importance  in  any  search  after  truth.  "The 
practice,  if  by  law  allowed,  would  lead  to  endless 
inquiries  and  contradictory  theories  and  specula- 
tions. In  a  word,  if  one  book  is  evidence,  so  is 
another,  and  if  all  are  admitted,  it  is  to  be  feared 
that  the  truth  would  be  lost  in  the  learned  contest 
of  discordant  opinions." 

The  rule  that  medical  treatises  are  inadmissible  in 
evidence  was  adopted  in  Maryland  in  1873,  when  it 
was  held  that  the  rules  prescribed  by  medical 
authors  for  making  post-mortem  examinations  could 
not  be  received  in  evidence.  It  was  said  that  if  it 
was  desired  to  show  that  an  examination  had  not 
been  made  by  the  physicians  in  a  skillful  and  proper 
manner,  it  could  be  done  only  through  the  testi- 
mony of  witnesses  competent  to  testify  on  that  sub- 
ject.2 And  the  doctrine  was  broadly  laid  down  that 
medical  treatises  could  not  be  received  to  sustain  or 
contradict  an  expert.  The  court  has  in  a  case  lately 
decided  held  that  a  book  entitled  "The  Principles 

1  Ware  v.  Ware,  8  Me.  42. 

2  Davis  v.  State,  38  Md.  15,  36. 

(26) 


Z  EXPERT  TESTIMONY. 

and  Practice  of  Life  Insurance,"  containing  the  rules 
and  modes  of  adjusting  life  insurance,  was  not  admis- 
sible in  evidence.1 

In  Massachusetts,  too,  it  is  evident  that  medical 
treatises  are  not  admissible  in  evidence.  Medical 
opinions  cannot  be  laid  before  a  jury  "except  by 
the  testimony,  under  oath,  of  persons  skilled  in  such 
matters." 

§  170.  Their  Inadmissibility  in  Michigan  and 
Mississippi. — In  a  case  before  the  Supreme  Court  of 
Michigan  in  1882  the  court  said:  "The  rule  is 
acknowledged  in  this  State  that  medical  books  are 
not  admissible  as  a  substantive  medium  of  proof  of 
the  facts  they  set  forth."  Subsequent  cases  in  the 
same  court  show  that  such  is  the  'well  recognized- 
rule/  The  same  ruling  was  made  in  Mississippi  in 
1882  in  a  case  involving  a  question  as  to  the  effect 
of  paralysis  on  the  human  arm.  It  was  held  to  be 
clearW  inadmissible  to  introduce,  as  primary  evi- 
dence, extracts  from  standard  medical  works.5 

§  171.  The  Doctrine  in  New  Hampshire  and  New 
York. — In  New  Hampshire  we  have  a  dictum  ap- 
proving the  rule  excluding  medical  books  from  the 
jury.6  In  New  York  the  question  does  not  appear 
to  have  been  ruled  on  in  either  the  Court  of  Appeals 
or  in  the  Supreme  Court.  The  New  York  Superior 

1  Mutual  Life  Ins.  Co.  v.  Bratt,  55  Md.  200. 

2  Chief  Justice  Shaw  in  Commonwealth  v.  Wilson,  1  Gray,  337  (1854). 
And  see  Ashworth  v.  Kittridge,  12  Gush.  194  (1853)  ;  Commonwealth  v. 
Sturtivant,  117  Mass.  122,  139  (1875)  ;    Commonwealth  v.  Brown,  121 
Mass.  69,  75  (1876)  ;  Commonwealth  v.  Marzynski,  149  Mass.  68  (1889). 

3  Pinney  v.  Cahill,  48  Mich.  584,  586. 

4  See  People  v.  Hall,  48  Mich.  486;  Marshall  v.  Brown,  50  Mich.  149; 
People  v.  Millard,  53  Mich.  63,  75,  et  seq.    Also  see  Barrick  v.  City  of 
Detroit,  1  Mich.  X.  P.  135. 

5  Tucker  v.  Donald,  60  Miss.  460,  470. 

8  Dole  v.  Johnson,  50  N.  H.  452,  455  (1870). 


NORTH    CAROLINA    AND    RHODE   ISLAND.  403 

Court,  however,  as  early  as  1858,  laid  down  the  rule 
that  the  matters  alleged  in  standard  treatises  must 
be  proved  in  the  same  manner  as  any  other  facts, 
and  that  the  books  themselves  were  no  evidence  of 
the  truth  of  the  assertions  of  fact  contained  in  them.1 

§172.  Their  Iiiadmissibility  in  North  Carolina 
and  Rhode  island. — The  subject  has  been  twice  con- 
sidered in  North  Carolina,  and  in  each  instance  a 
conclusion  was  reached  adverse  to  the  admissibility 
of  such  treatises  in  evidence.  It  was  first  presented 
in  1854,  and  the  conclusion  was  grounded  upon  the 
fact  that  the  writers  had  not  been  sworn  and  could 
not  be  cross-examined.2  It  was  again  before  the 
court  in  1877,  when  much  importance  was  attached 
to  the  fact  that  medicine  is  an  inductive  science, 
and  that  medical  treatises  are  based  on  data  ,  con- 
stantly shifting  with  new  discoveries  and  more  accu- 
rate observation.  "  The  medical  work  which  was  a 
'  standard  '  last  year  becomes  obsolete  this  year. 
Even  a  second  edition  of  the  work  of  the  same  author 
is  so  changed  by  the  subsequent  discovery  and 
grouping  together  of  new  facts,  that  what  appeared 
to  be  a  logical  deduction  in  the  first  edition  becomes 
an  unsound  one  in  the  next.  So  that  the  same 
author  at  one  period  may  be  cited  against  himself  at 
another."3 

In  holding  such  treatises  inadmissible  in  Rhode 
Island,  the  court  remarked  that  "scientific  men  are 
admitted  to  give  their  opinions  as  experts,  because 
given  under  oath;  but  the  book  which  they  write  con- 
taining them,  are,  for  want  of  such  an  oath, 


1  Harris  v.  Panama  R.  R.  Co.,  3  Bosw.  1,  18. 

2  Melvin  v.  Easley,  1  Jones'  Law,  338. 

3  Huffman  v.  Click,  77  X.  C.  55. 


404  EXPERT   TESTIMONY. 

excluded."  It  was  said  that  such  books  were  not 
rendered  any  the  more  admissible  by  the  fact  that 
the  experts  had  read  passages  from  them,  to  which 
in  cross-examination  they  had  been  referred,  and  in 
relation  to  which  they  had  answered  questions. 
And  counsel  cannot  read  from  them  for  the  pur- 
pose of  contradicting  the  experts. 

§  173.  Their  Inadmissibility  in  Wisconsin. — 
In  a  case  decided  in  1848,  counsel  had  proposed 
to  read  to  the  jury  certain  standard  medical  works 
"as  evidence,  or  by  the  way  of  instruction  to 
the  jury."  Objection  was  made,  which  the  trial 
court  sustained.  "This  is  a  matter,"  said  the 
Supreme  Court,  "  generally  within  the  discretion  of 
the  court,  and,  therefore,  not  a  subject  of  a  Avrit  of 
error.  In  many  cases,  no  doubt,  it  would  be  proper 
to  allow  books  of  science  to  be  read,  though  gen- 
erally, such  a  practice  would  lead  to  evil  results." 

But  in  a  subsequent  case  the  court  overruled  its 
earlier  decision  that  the  admissibility  of  such  treat- 
ises was  discretionary  with  the  trial  court ;  and, 
placing  itself  in  line  with  the  weight  of  authority 
on  this  subject,  declared  the  rule  to  be  that  medical 
books  could  not  be  read  to  the  jury  as  evidence, 
although  such  books  had  been  shown  by  expert  tes- 
timony to  be  standard  works  in  the  medical  profes- 
sion.3 And  this  doctrine  it  has  adhered  to  in  a 
number  of  recent  cases.4 

§  174.  The  Reason  Why  Such  Books  should  not  be 
Received  in  Evidence. — We  have  shown  that  the  rule 


1  State  v.  O'Brien,  7  R.  I.  336,  338. 

2  Luning  v.  State,  1  Chandler,  178. 
"Stilling  v.  Town  of  Thorp,  54  Wis.  528. 

4 Boyle  v.  State,  57  Wis.  472;  Soquet  v.  State,  72  Wis.  659 ;  Krenziger 
v.  Chicago,  etc.  R.  R.  Co.,  73  Wis.  158. 


REASON   WHY    NOT    RECEIVED.  405 

that  medical  treatises  are  inadmissible  in  evidence  is 
supported  by  the  weight  of  authority.  We  also 
think  that  the  rule  is  supported  by  the  better  rea- 
son, and  that  the  cases  which  announce  a  contrarv 

*/ 

principle  have  been  unwisely  decided.  As  the  ob- 
jections to  the  receptions  of  such  books  in  evidence 
have  been  concisely  and  forcibly  stated  by  a  distin- 
guished writer  in  a  manner  that  leaves  nothing  to 
be  added,  we  adopt  his  language  as  follows:  "  In 
the  first  place,  a  sound  induction  last  year  is  not 
necessarily  a  sound  induction  this  year,  and,  as  a 
matter  of  fact,  works  of  this  class,  when  they  do  not 
become  obsolete,  are  altered,  in  material  features, 
from  edition  to  edition,  so  that  we  cannot  tell,  in 
citing  from  even  a  living  author,  whether  what  we 
read  is  not  something  that  this  very  author  now  re- 
jects. In  the  second  place,  if  such  books  are  admit- 
ted as  a  class,  those  which  are  compilations  must  be 
admitted  as  well  as  those  which  contain  the  result 
of  original  research  ;  the  purely  speculative  must 
come  in  side  by  side  with  the  empirical ;  so  that  if 
such  treatises  are  admitted  at  all,  it  will  be  impossi- 
ble to  exclude  those  which  are  secondary  evidence 
of  .the  facts  they  state.  In  the  third  place,  such 
books,  without  expert  testimony,  cannot  generally 
be  pointed  to  the  concrete  case ;  with  expert  testi- 
mony, they  become  simply  part  of  such  testimony, 
and  lose  their  independent  substantive  character  as 
books. 

"  In  the  fourth  place,  the  authors  of  such  books 
do  not  write  under  oath,  and  hence  the  authorities 
on  which  they  rest  cannot  be  explored,  nor  their 
processes  of  reasoning  tested. 

"  Lastly,  such  books  are  at  best  hearsay  proof  of 


406  EXPERT   TESTIMONY. 

that  which  living  witnesses  could  be  produced  to 
prove."  l 

§  175.      Views  of  Writers  on  Medical  Jurisprudence 

on  this  Question. — Some  writers  on  medical  jurispru- 
dence have  been  inclined  to  disapprove  and  even  to 
resent  the  exclusion  of  medical  treatises  from  evi- 
dence. In  Beck's  Medical  Jurisprudence  the  learned 
author  strenuously  maintains  the  right  of  the  pro- 
fessional witness  to  refer  to  medical  treatises.  He 
has  manifestly  fallen  into  error  in  laying  down  the 
following  proposition  : 

"  In  this  country,  I  believe,  the  objection  to  med- 
ical books  has  never  been  made.  There  is  scarcely 
a  case  of  any  note,  where  testimony  has  been  required, 
in  which  frequent  reference  has  not  been  made 
to  medical  works.  They  are  quoted  and  commented 
on  by  the  bench  and  bar,  and  by  the  professional 
witnesses." 

Later  writers  on  medical  jurisprudence  have  taken 
a  more  just  view  of  this  question,  and  appreciate  the 
reasonableness  and  justice  of  the  rule.  In  ElwelFs 
Medical  Jurisprudence  we  find  that  distinguished 
writer  saying:  ''the  medical  witness,  therefore,  has  no 
just  grounds  of  complaint,  because  his  books  are  not 
received  in  evidence.  The  court  honors  his  individ- 
ual opinion  as  of  higher  value  than  that  of  an  out- 
side author.  The  court  presumes,  that  from  reading 
these  authors,  close  thought  and  actual  observation 
and  experience,  the  witness,  under  oath,  subject  to 
cross-examination,  will  more  certainly  enlighten  the 
case  than  if  it  depends  upon  the  published  opinions 
of  authors,  who,  perhaps,  had  a  favorite  theory  to 
support,  or  an  old  prejudice  to  influence  them,  on  a 

1  Wharton's  Evidence,  §  665. 

2  Beck's  Med.  Jurisprudence,  919. 


FOR   PURPOSES    OF    CONTRADICTION.  407 

question  or  subject  constantly  advancing.  Then 
the  author  himself  may  have  changed  his  opinions 
since  the  book  was  written." 

So  in  Ordonaux's  Jurisprudence  of  Medicine  it  is 
said:  "The  reason  of  this  rule  is  founded  in  the 
principle  that  the  expert  is  called  to  express  a  per- 
sonal opinion  upon  a  state  Of  facts  of  variable  inter- 
pretation, and  if  a  book  could  pronounce  it  as  well, 
it  would  be  superfluous  to  call  him.  *  *  *  The 
justice  of  excluding  scientific  books  from  the  field  of 
evidence  becomes  immediately  apparent,  when  we 
reflect  that  they  deal  necessarily  only  with  universal 
propositions,  and  inasmuch  as  every  particular  case 
wears  a  complexion  of  its  own,  it  is  indispensable  to 
its  correct  interpretation  that  some  living  witness, 
skilled  in  experience,  and  able  to  detect  laws  of  com- 
mon agreement,  should  be  called  in  as  an  expert 
umpire.  As  no  dictionary  of  human  thoughts  will 
ever  be  written,  so  no  dictionary  of  physical  laws  will 
ever  be  compiled,  that  shall  provide  with  strictest 
fidelity,  the  necessary  interpretation  ior  all  the  vari- 
ously complex  and  conflicting  manifestations  of  mu- 
tational  phenomena,  not  to  speak  of  the  more  puz- 
zling sphere  of  antinomies  and  apparent  contradic- 
tions."2 

§  176.  Their  Admissibility  for  Purposes  of  Con- 
tradiction.— We  stated  in  a  former  section  that  the 
rule  excluding  such  treatises  from  evidence  was  sub- 
ject to  an  exception,  and  that  exception  relates  to 
cases  when  the  books  are  used  to  contradict  an  ex- 
pert. Not  that  such  books  can  be  used  to  contra- 
dict an  expert  generally,  for  that  would  be  as  im- 
proper as  it  would  be  to  introduce  them  in  evidence 

1  Elwell's  Med.  Jurisprudence,  335. 
Ordonaux's  Jurisprudence  of  Medicine,  153,  154. 


408  EXPERT   TESTIMONY. 

to  support  his  theories.1  But  where  an  expert 
in  giving  his  testimony  "has  stated  the  source  of 
his  professed  knowledge  counsel  will  be  allowed 
to  show  by  resorting  to  that  source  that  the  ex- 
pert was  mistaken.8  In  other  words  the  authori- 
ties which  an  expert  has  been  allowed  to  cite 
in  his  testimony  may  be  put  in  evidence  for  the 
purpose  of  contradicting  or  discrediting  him  as 
to  opinions  expressed  by  him  on  their  authority. 
For  instance,  in  a  case  decided  in  Michigan  in  1882, 
the  court  said  :  "He  (the  expert)  borrowed  credit 
for  the  accuracy  of  his  statement  on  referring  his 
learning  to  the  books  before  mentioned,  and  by  im- 
plying that  he  echoed  the  standard  authorities  like 
Dodd.  Under  the  circumstances  it  was  not  improper 
to  resort  to  the  book,  not  to  prove  the  facts  it  con- 
tained, but  to  disprove  the  statement  of  the  witness, 
and  enable  the  jury  to  see  that  the  book  did  not  con- 
tain what  he  had  ascribed  to  it.  The  final  purpose 
was  to  disparage  the  opinion  of  the  witness,  and 
hinder  the  jury  from  being  imposed  upon  by  a  false 
light.  The  case  is  a  clear  exception  to  the  rule  which 
forbids  the  reading  of  books  of  inductive  science 
as  affirmative  evidence  of  the  facts  treated  of." 

While  this  seems  to  be  the  better  rule  it  must 
be  said  that  there  is  authority  against  permitting 
the  use  of  scientific  books,  even  in  such  cases, 
for  purposes  of  contradiction.4  But  these  cases 

1  Forest  City  Ins.  Co.  v.  Morgan,  22  111.  Ct.  of  App.  R.  198;  Common- 
wealth v.  Sturdvant,  117  Mass.  122. 

2  Huffman  v.  Click,  77  N.  C.  55;  City  of  Ripon  v.  Bittel,  30  Wis.  614; 
Gallagher  v.  Street  Railway  Co.,  67  Cal.  13;  City  of  Bloomington  v. 
Shrock, 219,  222. 

3  Pinney  v.  Cahill,  48  Mich.  584. 

4  State  "v.  O'Brien,  7  R.  I.  336,  338  (1862) ;    Davis  v.  State,  38  Md.  15, 
36  (1873) 


RIGHT   TO    CITE   STANDARD    AUTHORITIES.          409 

are  opposed  to  the  weight  of  authority  on  this  sub- 
ject. 

§  177.  The  Bight  of  the  Witness  to  Refer  to  or 
Cite  standard  Authorities. — How  far  a  witness  may 
go  in  referring  to  medical  treatises  in  giving  his  tes- 
timony it  is  difficult  to  say.  A  witness  certainly  has 
the  right  to  refresh  his  recollection  by  reference  to 
standard  authorities,  provided  the  opinion  he  gives 
is  his  own  and  not  that  of  another.1  And  inasmuch 
as  an  expert  witness  is  not  confined,  in  giving  his 
testimony,  to  his  personal  experience,  but  is  allowed 
to  state  opinions  which  he  has  formed  in  part  from 
the  reading  of  treatises  prepared  by  persons  of  rec- 
ognized ability,2  it  is  proper  that  he  should  be  al- 
lowed to  state  the  source  from  which  he  derived  the 
opinions  so  formed.3  But  where  a  treatise  cannot 
be  received  in  evidence  it  would  seem  to  be  improper 
to  allow  an  expert  to  testify  what  such  work  contains 
or  says.  Hence,  in  a  Wisconsin  case,  the  court  held 
that  error  had  been  committed  in  allowing  an  ex- 
pert to  testify  as  to  what  was  said  in  standard  med- 
ical works  upon  the  subject  of  strangulation,  and  as 
to  the  effects  which  would  be  produced  on  the  body 
of  the  deceased  when  death  resulted  from  such  a 
cause.*  And  similarly  in  Massachusetts  it  was  held 
that  no  error  was  committed  in  declining  to  allow 
the  witness  to  read  extracts  from  standard  author- 
ities.5 

Sussex  Peerage  Case,  11  Cl.  &  F.  114,117;  People  v.  Wheeler,  60 
Cal.  581,  585. 

2  See  section  19. 

3  In  State  v.  Baldwin,  36  Kan.  1,  17, 18  (1886),  it  is  said  not  to  be  im- 
proper for  the  expert  to  state  that  his  opinion  was  formed  from  the  study 
of  books  and  men,  and  that  all  the  writers  and  authorities  on  the  subject 
so  far  as  he  knew  supported  him  in  the  opinion  which  he  had  expressed. 

<  Boyle  v.  State,  57  Wis.  472,  478  (1883). 

5  Commonwealth  v.  Sturtivant,  117  Mass.  122, 139. 


410  EXPERT    TESTIMONY. 

§  178.  Beading-  from  Authorities  and  Asking  the 
Witness  Whether  he  Agrees  with  the  Extracts  Read. 

— An  attempt  has  been  made  in  some  cases  to  evade 
the  rule  that  medical  treatises  are  inadmissible  in 
evidence.  The  plan  pursued  has  been  to  read  to 
the  witness  extracts  from  such  treatises  and  then  in- 
quire of  him  whether  he  agrees  with  the  parts  so 
read.  When  the  books  themselves  are  inadmissible 
in  evidence  an  attempt  to  evade  the  excluding  rule 
by  examining  or  cross-examining  in  such  a  way  as 
to  get  the  books  before  the  jury  is  reprehensible  and 
should  not  be  permitted.1  In  a  case  in  Illinois  the 
trial  court  allowed  counsel  on  cross-examination  to 
ask  the  expert  if  he  was  acquainted  with  certain 
medical  authorities,  and  upon  his  responding  in  the 
affirmative  and  that  they  were  standard  works,  coun- 
sel was  permitted  to  read  at  length  from  each  of  the 
authors  consecutively  and  then  inquire  of  the  ex- 
pert if  he  agreed  with  the  opinions  which  the  au- 
thors expressed  in  the  parts  read.  This  was  held 
error  and  the  judgment  reversed.2 

Even  in  Iowa,  whose  courts,  as  we  have  seen,  al- 
low medical  treatises  to  be  received  in  evidence,  it 
has  been  decided  that  a  question  was  properly  ex- 
cluded which  inquired  of  an  expert  whether  he  had 
read  the  opinions  of  a  certain  author  on  a  certain 
subject,  and  if  so,  whether  those  opinions  agreed 
with  his  own.  The  court  said  that  the  question 
simply  sought  to  elicit  a  restatement  of  the  opinion 
of  the  witness,  and  that,  therefore,  it  was  properly 
excluded.3 


1  Marshall  v.  Brown,  50  Mich.  148;  People  v.  Millard,  53  Mich.  63,  77. 

2  City  of  Bloomington  v.  Shrock,  110  111.  219. 

3  State  v.  Winter,  72  Iowa,  627. 


RULE    IN    ENGLAND.  41 1 

§  179.  Reading  from  Scientific  Books  in  Argu- 
ment.— The  same  objections  which  have  been  deemed 
sufficient  to  exclude  scientific  treatises  as  evidence 
would  seem  to  be  equally  potent  against  the  right  of 
counsel  to  read  extracts  therefrom  as  a  part  of  their 
argument  to  the  jury.  It  is  difficult  to  see  how  any 
just  distinction  can  be  made  between  the  two  cases, 
and  how  any  such  right  can  be  recognized  by  any 
court  which  maintains  the  inadmissibility  of  the 
treatise  in  evidence.  We  think  the  better  rule  is  not 
to  allow  counsel  to  read  to  the  jury  as  a  part  of  their 
argument  extracts  from  scientific  works,  though  such 
works  are  shown  to  be  standard  authorities.  Such 
is  the  rule  in  England,  as  we  shall  presently  see, 
and  such  is  the  rule  in  this  country  as  recognized  by 
the  better  authorities.  There  are,  however,  a  few 
cases  in  which  the  courts  have  decided  that  such  a 
right  exists,  and  other  cases  in  which  dicta  may  be 
found  which  are  sometimes  referred  to  as  sustaining 
the  same  idea.  But  we  must  consider  all  such  cases 
incorrect  in  principle  and  not  well  considered.  We 
shall  now  examine  the  cases. 

§  180.  The  Rule  in  England  on  the  Subject. — In 
a  case  in  England,  where  counsel  in  his  address  to 
the  jury  attempted  to  quote  from  a  work  on  surgery, 
it  was  held  he  was  not  justified  in  doing  so.  The 
report  of  the  case  is  as  follows : 

"The  prisoner  was  indicted  for  the  willful  murder 
of  his  wife,  and  the  defense  set  up  was  that  of  in- 
sanity. 

"  Clarkson,  for  the  prisoner,  in  his  address  to  the 
jury,  attempted  to  quote  from  a  work  entitled 
'  Cooper's  Surgery  '  the  author's  opinions  on  the  sub- 
ject. 


412  EXPERT    TESTIMONY. 

11  Alderson,  B.,  thought  he  was  not  justified  in  do- 
ing so. 

11  Clarlcson  —  I  quote  it,  my  Lord,  as  embodying 
the  sentiments  of  one  who  has  studied  the  subject; 
and  submit  that  it  is  admissible  in  the  same  way  as 
opinions  of  scientific  men  on  matters  appertaining 
to  foreign  law  to  be  given  in  evidence. 

"  Alderson,  B. — I  should  not  allow  you  to  read  a 
work  on  foreign  law.  Any  person  who  was  properly 
conversant  with  it  might  be  examined,  but  then  he 
adds  his  own  personal  knowledge  and  experience  to 
the  information  he  may  have  derived  from  books. 
We  must  have  the  evidence  of  individuals,  not  their 
written  opinions.  We  should  be  inundated  with 
books  were  we  to  hold  otherwise. 

"  Clarlcson  —  I  shall  prove  the  book  to  be  one  of 
high  authority. 

"Alderson,  B. —  But  can  that  mend  the  matter? 
You  surely  cannot  contend  that  you  may  give  the 
book  in  evidence,  and  if  not,  what  right  have  you  to 
quote  from  it  in  your  own  address,  and  do  that  indi- 
rectly which  you  would  not  be  permitted  to  do  in  the 
ordinary  course. 

"Clarkson — It  was  certainly  done,  my  Lord,  in 
Naughten's  case. 

"Alderson,  B. — And  that  shows  still  more  strongly 
the  necessity  for  stringent  adherence  to  the  rules 
laid  down  for  our  observance.  But  for  the  non-in- 
terposition of  the  judge  in  that  case  you  would  not 
probably  have  thought  it  necessary  to  make  this 
struggle  now."1  And  so  in  England  the  law  does 
not  permit  counsel  in  their  argument  to  the  jury  to 

1  The  Queen  v.  Crouch,  1  Cox  Cr.  Cas.  94. 


CASES    DENYING    RIGHT.  413 

read  as  part  of  their  argument  extracts  from  stand- 
ard medical  works.1 

§  181.  Cases  in  the  United  States  Denying  to 
Counsel  the  Rig-lit  to  Read  in  Argument  from  Scientific 

Books. — The  cases  in  this  country  are  somewhat  at 

*. 

variance  on  this  subject,  and  we  shall  first  consider 
the  cases  which  deny  the  existence  of  any  such  right 
on  the  part  of  counsel. 

In  Massachusetts  when  counsel  for  the  defendant 
in  his  opening  to  the  jury,  contending  that  cribbing 
was  not  an  unsoundness  in  a  horse,  but  a  habit,  pro- 
posed to  read  from  a  work  on  veterinary  surgery  a 
description  of  the  habit  ' '  a  better  mode  of  showing 
what  cribbing  was,  but  not  as  evidence  in  the  case," 
it  was  held  no  error  to  refuse  to  allow  him  to  pro- 
ceed." So  in  an  earlier  case  the  same  court  denied 
the  right,  on  the  ground  that  the  extracts  would,  in 
effect,  be  used  as  evidence.3 

In  Michigan  it  is  well  understood  that  counsel 
have  no  such  privilege.  The  question  was  before 
the  court  in  1879,  and  was  so  decided.4 

In  North  Carolina  the  question  has  been  carefully 
considered,  and  the  language  of  the  court  in  deny- 
ing the  right,  warrants  repetition  in  this  connection. 
"It  sounds  plausible  to  say,  you  do  not  read  it  as 
evidence,  but  that  you  adopt  it  as  part  of  your  ar- 
gument. But  in  so  doing  the  counsel  really  obtains 
from  it  all  the  benefits  of  substantive  evidence  forti- 
fied by  its  '  standard  '  character.  He  first  proves 
by  the  medical  expert  that  the  work  is  one  of  high 
character  and  authority  in  the  profession,  and  then 

1  Regina  v.  Taylor,  13  Cox  Cr.  Gas.  77. 

2  Washburn  v.  Cuddihy,  8  Gray,  430. 

3  Ashworth  v.  Kittridge,  12  Gush.  194. 
<  Fraser  v.  Jennison,  42  Mich.  206,  214. 


414  EXPERT    TESTIMONY. 

he  says  to  the  jury,  'here  is  a  book  of  high  stand- 
ing, written  by  one  who  has  devoted  his  talents  to 
the  study  and  explanation  of  this  special  subject  of 
nervous  diseases.  He  expresses  my  views  with  so 
much  more  force  than  I  can,  that  I  will  read  an  ex- 
tract from  his  work  and  adopt  it  as  a  part  of  my  ar- 
gument.' It  is  evident  that  the  effect  of  this 
manoeuvre  is  to  corroborate  the  evidence  of  the 
medical  expert,  or  other  witnesses,  by  the  authority 
of  a  great  name  testifying,  but  not  under  oath,  to 
the  same  thing  as  the  expert,  but  with  this  differ- 
ence, that  the  author  has  not  heard  the  evidence 
upon  which  the  expert  based  his  opinion." 

In  Wisconsin  a  judgment  was  reversed  because 
counsel  in  his  argument  had  read  medical  authority 
to  the  jury,  the  court  saying  :  "  It  is  apparent  that 
if  counsel  are  allowed  to  read  extracts  of  medical 
authors  to  the  jury,  it  would  nullify  the  rule  which 
prevents  such  extracts  from  being  read  in  evidence. ' ' 

So  in  a  case  in  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  New  York,  when, 
counsel  stated  that  he  desired  to  read  from  "Ericson 
on  Railway  Injuries,"  as  a  part  of  his  argument,  Mr. 
Justice  WALLACE  declared  that  he  could  not  read 
any  portion  or  extract  from  the  book.3 

The  subject  was  also  considered  in  the  Supreme 
Court  of  California  in  1882.  Counsel  in  the  trial 
court  had  been  permitted,  against  objection,  to  read 
as  a  portion  of  his  argument  from  a  book  called 
"Browne's  MedicalJurisprudence  of  Insanity."  No 

1  Huffman  v.  Click,  77  N.  C.  54. 

2  Boyle  v.  State,  57  Wio.  472,  480  (1883). 

3  Robinson  v.  N.  Y.  Central  R.  R.  Co.,  Albany  Law  J.,  Oct.  29th,  1881, 
p.  357.    An  opinion  in  this  case  is  found  in  9  Federal  R.,  877,  but  the 
point  referred  to  is  not  considered  in  the  opinion. 


CASES    SUPPORTING    RIGHT.  415 

testimony  had  been  introduced  to  show  that  this 
was  a  standard  authority,  and  while  stress  was  laid 
on  this  fact  by  the  Supreme  Court,  the  reasoning  of 
that  court  leads  to  the  conclusion  that  had  such 
testimony  been  introduced  it  could  not  have  affected 
the  judgment  announced.  Judgment  was  reversed, 
and  a  new  trial  granted.1  It  seems  difficult  to  un- 
derstand why  any  stress  should  be  laid  on  the  fact 
that  the  work  was  not  shown  to  be  a  standard  au- 
thority. The  right  to  read  from  the  work  at  all  is 
predicated  upon  the  tact  that  counsel  has  adopted 
the  extract  as  his  own,  and  made  it  a  part  of  his 
argument.  The  theory  is  that  it  comes  before  the 
jury,  not  as  the  opinion  of  the  writer,  for  as  such  it 
would  be  inadmissible,  but  as  the  opinion  or  argu- 
ment of  counsel.  The  right  of  counsel,  therefore, 
to  make  the  argument  cannot  depend  upon  the  fact 
that  it  is  sustained  by  standard  authorities,  or  by 
any  authorities  at  all.  This  fact  the  court  over- 
looked, although  it  reached  a  correct  conclusion  on 
the  facts. 

§  182.  Cases  Sometimes  Cited  as  Supporting  the 
Right  of  Counsel  so  to  do. — The  most  of  the  cases 
which  are  usually  referred  to  as  sustaining  the  right 
of  counsel  to  read  from  scientific  treatises  in  their 
arguments  to  the  jury  do  not  justify  on  cross-exami- 
nation, and  to  the  full  extent,  the  claim  made  for 
them.  The  question  is  sometimes  supposed  to  have 
been  decided  in  Ohio  in  1853,  in  a  case  in  which 
counsel  had  been  denied  the  right  to  read  in  argu- 
ment to  the  jury,  from  a  medical  book,  proven  by 
the  testimony  to  be  a  standard  authority.  But  the 
Supreme  Court  did  not  reverse  the  judgment  because 

People  v.  Wheeler.  60  Cal.  581. 


416  EXPERT   TESTIMONY. 

of  the  denial  of  the  right  claimed,  the  record  not 
showing  that  the  passage  which  counsel  was  denied 
the  privilege  of  reading  had  any  relevancy  to  the 
matter  in  issue,  "  or  came  within  the  appropriate 
and  legitimate  scope  of  argument."  To  be  sure, 
the  opinion  contains  the  following  dictum:  "And 
it  is  not  to  be  denied  but  that  a  pertinent  quotation 
or  extract  from  a  work  on  science  or  art,  as  well  as 
from  a  classical,  historical  or  other  publication,  may, 
by  way  of  argument  or  illustration,  be  not  only 
admissible,  but  sometimes  highly  proper.  And  it 
would  seem  to  make  no  difference  whether  it  was 
repeated  by  counsel  from  recollection  or  read  from  a 
book."  But  the  court  adds:  "It  would  be  an 
abuse  of  this  privilege,  however,  to  make  it  the  pre- 
tense of  getting  improper  matter  before  the  jury 
as  evidence  in  the  cause."  The  right  to  read  a 
pertinent  quotation  from  a  book  by  way  of  illustra- 
tion is  one  thing,  and  the  right  to  read  the  opinions 
of  authors  in  connection  with  the  facts  of  a  particular 
case,  is  another  thing.  The  right  to  do  the  first  is 
recognized  by  the  above  dictum;  the  right  to  do 
the  latter  does  not  have  the  support  of  even  a  dic- 
tum in  the  opinion  above  referred  to. 

The  question  is  also  sometimes  supposed  to  have 
been  decided  in  Texas  in  1857,  but  that  case  is  "on 
all  fours  "  with  the  Ohio  case  already  referred  to, 
and  what  is  said  of  that  case  is  equally  applicable 
to  this.2 

The  Supreme  Court  of  Indiana  in  1848  said  :  "If 
the  extracts  referred  to  contained  the  opinions  or 
expositions  of  learned  or  scientific  witnesses  upon  a 
point  in  issue,  and  such  extracts  were  inadmissible 

1  Legg  v.  Drake,  1  Ohio  St.  286,  288. 

2  Wade  v.  De  Witt,  20  Texas,  398. 


READING    SCIENTIFIC    BOOKS.  417 

when  offered  as  evidence  during  the  introduction  of 
testimony  by  the  parties,  the  court  should  not  have 
permitted  them  to  be  read  at  any  time.  But  if  the 
extracts  were  merely  argumentative,  and  contained 
no  opinions  or  expositions,  which  could  be  regarded 
as  properly  matters  of  evidence,  we  cannot  perceive 
any  valid  objection  to  their  being  read  or  adopted 
as  argument,  subject,  of  course,  to  the  instructions 
of  the  court  as  to  the  law  of  the  case. ' ' 

And  the  Supreme  Court  of  Illinois  in  1868  held 
that  error  was  committed  when  the  attorney  for  the 
people,  against  objection,  was  allowed  to  read  to  the 
jury  extracts  from  medical  works  which  had  not  been 
introduced  in  evidence,  and  which  had  not  been 
proved  by  any  witness  to  be  authority,  and  to  state 
to  the  jury  that  what  he  had  read  was  authority  upon 
the  subject  of  poison  by  arsenic.  The  court  in  the 
course  of  its  opinion,  says  :  "If  the  State's  attor- 
ney in  such  a  case,  or  in  any  case,  read  from  med- 
ical books  in  his  argument  to  the  jury,  the  court 
should  instruct  them  that  such  books  are  not  evi- 
dence, but  theories  simply,  of  medical  men."  This 
case  is  sometimes  referred  to  as  supporting  the 
theory  that  counsel  have  a  right  to  read  such  books 
in  argument,  but  no  such  point  was  actually  decided 
in  the  case. 

§  183.  Cases  Deciding1  that  Counsel  may  Bead 
from  Scientific  Books  in  Argument. — The  Supreme 
Court  of  Connecticut  in  1878  decided  that  a  trial 
court  committed  an  error  in  declining  to  allow  the  at- 
torney for  the  State  in  his  opening  argument  to  read 
certain  portions  of  "Ray's  Medical  Jurisprudence 

1  Jones  v.  The  Trustees,  etc.  1  Smith,  47. 

2  Yoe  v.  The  People,  49  111.  410,  412. 

(27) 


418  EXPERT    TESTIMONY. 

of  Insanity."  It  appeared  that  counsel  had  been 
permitted  by  tacit  consent,  for  a  long  series  of 
years  in  that  State  to  exercise  that  right.  The 
court  decided,  when  the  question  was  at  length 
formerly  raised,  that  the  practice  must  be  regarded 
as  having,  by  repetition,  hardened  into  a  rule,  upon 
the  continued  existence  of  which  the  counsel  had  a 
right  to  rely.  "The  question  is  not,  shall  such 
reading,  be  now  for  the  first  time  permitted  ;  it  is, 
shall  it  now  for  the  first  time  be  forbidden  without 
notice."  But  two  of  the  five  judges  composing  the 
court  dissented,  and  were  of  opinion  that,  notwith- 
standing the' practice  to  the  contrary,  the  trial  court 
was  right  in  declining  to  allow  counsel  to  read  from 
:such  books  in  argument. 

The  Supreme  Court  of  Indiana  in  1872,  and  the 
•court  in  Delaware  have  upheld  the  right  of  counsel 
to  read  from  standard  medical  authorities  in  their 
.argument,  the  jury  being  instructed  that  the  extracts 
read  were  not  to  be  regarded  as  evidence.2  The 
•objections  to  the  practice  pointed  out  in  later  and 
better  considered  cases  do  not  seem  to  have  occurred 
to  the  courts  announcing  these  opinions. 

§  184.  Reading-  the  Testimony  of  Experts  as  Con- 
tained in  Official  Reports. — It  sometimes  happens 
that  expert  testimony  given  in  another  case  is  set 
•out  at  length  in  the  official  reports,  appearing  either 
in  the  decision  of  the  court,  or  in  the  statement  .of 
the  case  by  the  reporter.  While  the  opinions  of  the 
experts  have  in  such  cases  been  expressed  under 
oath,  counsel  have  no  right  to  make  use  of  them  in 
another  case,  as  no  opportunity  is  afforded  in  such 


1  State  v.  Hoyt,  46  Conn,  330,  337. 

1  Harvey  v.  State,  40  Ind.  516  ;  State  v.  West,  1  Houston  C.  C.  371 . 


OFFICIAL    REPORTS.  419 

cases  for  any  cross-examination.  Such  a  case  arose 
in  Illinois,  where  the  State's  attorney  undertook  to 
read  to  the  jury  on  a  murder  trial,  the  testimony  of 
a  professor  of  chemistry,  as  found  in  an  official 
report  of  another  case,  concerning  the  symptoms  of 
poisoning  by  arsenic.  This  was  pronounced  to  be 
the  height  of  injustice,  and  judgment  was  reversed  ' 

1  foe  v.  People,  49  111.  410,  412. 


EXPERT    TESTIMONY. 


CHAPTER  X. 


COMPENSATION    OF    EXPERTS. 
SECTION. 

185.  Statutory  Provisions  Concerning  the  Compensation  of  Experts. 

186.  Experts  need  not  make  a  Preliminary  Examination  unless  Special 

Compensation  is  made. 

187.  Experts  Cannot  be  Required  to  Attend  Throughout  an   Entire 

Trial  for  the  Purpose  of  Listening  to  the  Testimony. 

188.  Whether  Experts  may  Decline  to  Express  an  Opinion  until  Spe- 

cial Compensation  is  made. 

189.  Opinions  of  Writers  on   Medical  Jurisprudence  as  to  Special 

Compensation. 

190.  American  Cases  Favoring  the  Rights  to  Extra  Compensation. 

191.  American  Cases  Denying  the  Right  to  Extra  Compensation. 

192.  Extra  Compensation  Allowed  in  England. 

193.  Effect  of  Making  Extra  Compensation. 

194.  Special  Compensation  to  Expert  Employed  by    the   State  in 

Criminal  Cases. 

195.  Special  Compensation  to  Experts  Summoned  for  the  Defense 

Paid  out  of  the  Public  Treasury. 

196.  Taxing  Expense  of  Services  of  an  Expert  as  Costs. 

§  185.  Statutory  Provisions  Concerning-  the  Com- 
pensation of  Experts. — In  some  few  States  there  will 
be  found  express  statutory  provisions  on  the  subject 
of  the  compensation  to  be  made  to  witnesses  who 
have  been  summoned  to  testify  in  the  character  of 
experts.  The  tendency  of  such  legislation  has  been 
in  the  direction  of  securing  to  such  witnesses  the 
right  to  extra  compensation,  if  in  the  discretion  of  the 


STATUTORY    PROVISION'S.  421 

court  it  should  seem  proper  that  such  extra  allowance 
should  be  granted.  In  some  cases  the  language  of 
the  statute  is  that  the  expert  "  shall  receive  "  addi- 
tional compensation  to  be  fixed  by  the  court.1 

In  other  cases  the  statute  reads  that  such  wit- 
nesses "may  be  allowed"  extra  compensation  if 
the  court  deems  it  just  and  reasonable.2  On  the 
other  hand  it  has  been  provided  in  at  least  one 
State  that  such  witnesses  may  be  compelled  to  testify 
without  any  extra  compensation.  It  has  been  so 
enacted  in  Indiana.3 

1  Thus,  the  Code  of  Iowa  declares :  "Witnesses  called  to  testify  only  to 
an  opinion  founded  on  special  study   or  experience  in  any  branch  of 
science,  or  to  make  scientific  or  professional  examinations,  and  state  the 
result  thereof,  shall  receive  additional  compensation,  to  be  fixed  by  the 
court,  with  reference  to  the  value  of  the  time  employed,  and  the  degree 
of  learning  or  skill  required;  provided,  that  such  additional  compensa- 
tion so  fixed  shall  not  exceed  four  dollars  per  day  while  so  employed." 
McClain's  Ann.  Code  of  Iowa  (Rev.  Sts.  1888),  p.  1493,  §  5090.      And 
in  Xorth  Carolina  the  statute  reads  as  follows:  "Experts  when  com- 
pelled to  attend  and  testify,  shall  be  allowed  such  compensation  and 
mileage  as  the  court  may,  in  its  discretion,  order."    Laws  of  1871,  ch. 
139,  §  13. 

2  The  provision  in  Minnesota  is  as  follows:  "That  the  judge  of  any 
court  of  record  in  this  State,  before  whom  any  witness  is  summoned,  or 
sworn  and  examined,  as  an  expert  in  any  profession  or  calling,  may,  in 
his  discretion,  allow  such  fees  or  compensation  as,  in  his  judgment,  may 
be  just  and  reasonable."    Gen.  St.  1878,  ch.  70,  §  8.    In  Rhode  Island 
the  provision  reads  as  follows :  "In  addition  to  the  fees  above  provided, 
witnesses  summoned  and  testifying  as  experts  in  behalf  of  the  State  be- 
fore any  justice  of  the  Supreme  Court,  trial  justice  or  coroner,  may  be 
allowed  and  paid  such  sum  as  such  justice  of  the  Supreme  Court,  trial 
justice  or  coroner  may  deem  just  and  reasonable :  Provided,  that  the  al- 
lowance so  made  by  any  trial  justice  or  coroner  shall  be  subject  to  the 
approval  of  a  justice  of  the  Supreme  Court."  Pub.  St.  (1882),  p.  733,  §  15. 

3  The  provision  is  as  follows :  "A  witness  who  is  an  expert  in  any  art, 
science,  trade,  profession,  or  mystery,  may  be  compelled  to  appear  and 
testify  to  an  opinion,  as  such  expert,  in  relation  to  any  matter,  when- 
ever such  opinion  is  material  evidence,  relevant  to  any  issue  on  trial  be- 
fore a  court  or  jury,  without  payment  or  tender  of  compensation  other 
than  the  per  diem  and  mileage  allowed  by  law  to  witnesses, under  the  same 
rules  and  regulations  by  which  he  can  be  compelled  to  appear  and  tes- 
tify to  his  knowledge  of  facts  relevant  to  the  same  issue."  Indiana  Rev. 
St.  (1881),  p. 94,  §  504. 


422  EXPERT    TESTIMONY. 

In  a  case  in  Minnesota  where  the  statute  read 
that  the  court  in  its  discretion  might  allow  such 
compensation  to  expert  witnesses  as  it  thought  just 
and  reasonable,1  the  court  construed  the  statute  as 
being  evidently  designed  to  leave  the  matter  of 
allowing  or  disallowing  extra  compensation  to  ex- 
pert witnesses  wholly  to  the  discretion  of  the  trial 
judge,  and  it  declared  that  if  there  could  be  a  case 
in  which  it  (the  Supreme  Court)  would  feel  war- 
ranted in  reversing  an  order  refusing  such  allowance 
it  would  at  most  only  be  one  where  there  had  been 
a  most  palpable  and  gross  abuse  of  discretion:2  But 
on  the  other  hand  in  North  Carolina  where  the 
statute  read  that  experts  should  be  allowed  such 
compensation  as  the  court  in  its  discretion  might 
order,3  the  court  seemed  to  think  that  this  conferred 
a  right  to  extra  compensation,  and  it  overruled  the 
action  of  tlie  trial  court  which  had  declined  to  grant 
the  extra  compensation.4 

It  is  to  be  observed,  however,  that  these  statutes 
do  not  apply  to  the  case  of  witnesses  engaged  in  the 
professions,  and  summoned  to  testify  as  to  ordi- 
nary facts,  rather  than  to  opinions  founded  on 
special  study  and  experience.5  Thus,  in  a  case  in 
the  Supreme  Court  of  Minnesota,  it  is  laid  down  that 
the  statute  was  designed  to  apply  only  to  cases 
"where  witnesses  are  called  to  testify  to  an  opinion 
founded  on  special  study  or  experience  in  any  pro- 
fession or  calling,  or  to  make  scientific  or  professional 
examinations  of  some  matter  connected  with  the  is- 

1  The  provison  is  set  forth  in  full  in  note  2,  p.  421. 
2LeMere  v.  McHale,  30  Minn.  410. 

3  The  provision  is  set  out  in  note  1,  p.  421. 

4  State  v.  Dollar,  66  N.  C.  626. 

5  Snyder  v.  Iowa  City,  40  Iowa,  646. 


PRELIMINARY    EXAMINATION.  423 

sues  involved  in  the  case,  and  then  state  the  results, 
and  not  to  cases  where  a  witness,  skilled  in  some  pro- 
fession or  calling,  is  called  upon  to  testify  as  to  facts 
within  his  personal  knowledge,  although  he  may 
have  acquired  his  knowledge  of  the  facts  while  in  the 
ordinary  practice  of  his  profession,  and  although 
his  professional  skill  may  have  enabled  him  to  ob- 
serve such  facts  more  intelligently  and  narrate  them 
more  correctly.  In  respect  to  facts  within  his 
knowledge,  there  is  no  reason  why  a  professional 
man  should  not  stand  upon  an  equality  with  any 
other  witness,  Avhen  called  upon  to  testify  to  what 
he  has  seen  or  personally  knows  about  the  facts  of 
a  particular  case.  He  is  only  performing  a  duty 
which  every  other  citizen  is  required  to  do,  and  is 
not,  in  our  opinion,  '  summoned  or  sworn  and  ex- 
amined as  an  expert,'  within  the  meaning  of  the 
statute." 

§  186.  Experts  Need  not  Make  a  Preliminary  Ex- 
amination, unless  Special  Compensation  is  Made. — 
An  expert  cannot  be  compelled  to.  make  any  pre- 
liminary investigation  of  the  facts  involved  in  a 
case,  in  order  to  enable  him  to  attend  on  the  trial 
and  give  a  professional  opinion.  For  instance,  if 
the  State  desires  the  opinion  of  medical  experts  as 
to  the  cause  of  death,  it  cannot  compel  them  to 
make  a  post-mortem  examination  of  the  body  of  the 
deceased,  for  the  purpose  of  qualifying  them  to  ex- 
press an  opinion  as  to  what  was  the  cause  of  death.' 
And  in  the  same  way  an  expert  can  not  be 
required  to  make  a  personal  examination  of  one 
alleged  to  be  insane,  in  order  that  he  may  become 

1  Le  Mere  v.  McHale,30  Minn.  410. 

2  See  Summers  v.  State,  5  Tex.  Ct.  of  App.,  374,  378. 


424  EXPERT    TESTIMONY. 

qualified  to  express  his  opinion  as  to  the  mental 
condition  of  the  one  whose  sanity  is  called  in  ques- 
tion. 

§  187.  Experts  Cannot  be  Required  to  attend 
Throughout  an  Entire  Trial  for  the  Purpose  of  Listen- 
ing to  the  Testimony. — Experts  cannot  be  com- 
pelled to  attend  a  trial  from  its  inception  to  its  close 
and  listen  to  all  the  testimony  given,  in  order  that 
they  may  become  thereby  qualified  to  express  an 
opinion  upon  the  evidence. 

Thus,  in  a  case  in  New  York,  the  court  says: 
"The  district-attorn ey,  it  is  true,  might  have 
required  the  attendance  of  Dr.  Hammond  on  sub- 
pcena  ;  but  that  would  not  have  sufficed  to  qualify 
him  to  testify  as  an  expert,  with  clearness  and  cer- 
tainty, upon  the  question  involved.  He  would 
have  met  the  requirement  of  a  subpcena  if  he  had 
appeared  in  court  when  he  was  required  to  testify, 
and  given  proper  impromptu  answers  to  such  ques- 
tions as  might  then  have  been  put  to  him  in  behalf 
of  the  people.  He  could  not  have  been  required 
under  process  of  subpoena  to  examine  the  case  and 
to  have  used  his  skill  and  knowledge  to  enable  him 
to  give  an  opinion  upon  any  points  of  the  case,  nor 
to  have  attended  during  the  whole  trial  and  atten- 
tively considered  and  carefully  heard  all  the  testi- 
mony given  on  both  sides,  in  order  to  qualify  him 
to  give  a  deliberate  opinion  upon  such  testimony  as 
an  expert  in  respect  to  the  question  of  the  sanity  of 
the  prisoner."1 

§  188.  Whether  Experts  May  Decline  to  Express 
an  Opinion  Until  Special  Compensation  is  Made. — 
There  can  be  no  doubt  that  professional  men  are 

1  People  v.  Montgomery,  13  Abbott's  Pr.  R.  (X.  Y.),207,  240. 


LISTENING    TO    THE    TESTIMONY.  425 

not  entitled,  in  this  country,  to  claim  any  additional 
compensation  when  testifying  as  ordinary  witnesses 
to  facts  which  happen  to  fall  under  their  observa- 
tion.1 But  another  question  arises,  when  they  are 
summoned  to  testify  as  to  facts  of  science  with 
which  they  have  becqme  familiar  by  means  of 
special  study  and  investigation,  or  to  express  opin- 
ions based  upon  the  skill  acquired  from  such 
researches,  as  to  conclusions  which  ought  to  be 
drawn  from  certain  given  facts.  Whether  they  can 
be  compelled  to  testify  in  such  cases,  when  no  other 
compensation  has  been  tendered  than  the  usual  fees 
of  witnesses  testifying  to  ordinary  facts,  is  a  point 
upon  which  the  cases  are  not  in  harmony.  In  this 
country  the  cases  are  nearly  balanced,  and  the 
question  must  be  regarded  as  still  an  open  one, 
although  the  weight  of  authority  rather  inclines  to 
the  theory  that  the  expert  may  be  required  to  an- 
swer without  additional  compensation. 

The  time  of  professional  men  is  said  to  be  more 
valuable  than  that  of  non-professional  men.  But 
it  is  very  doubtful  whether  this  is  true  at 
the  present  time  if  it  ever  was  true.  The 
time  of  a  man  engaged  in  important  business 
enterprises  is  very  valuable.  There  is  no  way  of 
ascertaining  whether  the  time  of  such  a  man  is 
more  or  less  valuable  than  that  of  a  professional 
man,  and  if  there  were  it  would  not  be  important 
that  it  should  be  determined.  Witnesses  are  not 
compensated  according  to  the  value  of  their  time, 
and  to  undertake  to  establish  any  such  basis 
of  compensation  is  entirely  impracticable.  One 
professsional  man's  time  may  be  of  great  value,  and 

1  Snyder  v.  Iowa  City,  40  Iowa,  646.    And  see  Buchman  v..  State,  59 
Ind.  1. 


426  EXPERT   TESTIMONY. 

another's  of  little  value  ;  and  the  same  man's  time 
may  be  very  valuable  on  one  dayand  not  especially 
so  on  another.  The  same  may  likewise  be  affirmed 
of  a  business  or  non-professional  man's  time.  It  is 
said  also  that  a  professional  man's  knowledge  and 
skill  constitute  a  species  of  property,  which  he  can- 
not be  deprived  of  without*  compensation.  But  in 
the  administration  of  justice,  a  professional  man's 
services,  at  least  in  the  legal  profession,  can  be  ex- 
acted of  him  without  compensation.  The  weight 
of  authority  in  this  country  establishes  the  doctrine 
that  an  attorney  can  be  assigned  by  the  court  to 
defend,  without  compensation,  a  poor  person  accused 
of  crime,  and  if  he  declines  to  comply  with  the 
order  he  may  be  punished  for  contempt.  If  he 
obeys  the  order  he  is  not,  in  the  absence  of  a 
statute  authorizing  it,  entitled  to  any  compensa- 
tion from  the  State  for  the  knowledge  and  skill  thus 
exacted  from  him.1 

The  cases  are  not  in  all  respects  analogous,  but 
they  are  sufficiently  so  to  give  rise  to  an  inference, 
not  wholly  unjustifiable,  that  if  the  State  has  a 
right  to  avail  itself,  without  compensation,  of  the 
professional  skill  of  a  lawyer,  to  defend  a  person 
accused  of  crime,  it  also  has  a  right  to  the  opinion 
of  a  medical  expert,  without  extra  compensation, 
as  to  the  sanity  or  insanity  of  the  person  accused. 
The  professional  knowledge  and  skill  of  a  lawyer  is 
as  much  the  property  of  the  lawyer  as  is  the  like 
knowledge  and  skill  of  the  physician.  The  lawyer, 
to  be  sure,  is  an  officer  of  the  court,  and  as  such  is 
subject  to  the  lawful  commands  of  the  court.  But 

1  Bacon  v.  County  of  Wayne,  1  Mich.  461;  Rowe  v.  Yuba  Co.,  17  CaL 
61. 


LISTENING    TO    THE    TESTIMONY.  427 

has  the  court  any  greater  right  to  the  private 
property  of  one  of  its  officers  than  it  has  to  the 
property  of  one  who  does  not  stand  in  official  rela- 
tions to  it? 

Whatever  the  answer  may  be,  it  may  be  confi- 
dently asserted  that  if  an  expert  claims  that  an 
exception  exists  exempting  him  from  the  general 
rule,  which  requires  all  witnesses  on  the  payment 
of  the  fees  allowed  by  statute  to  testify  as  to  mat- 
ters within  their  knowledge,  that  the  burden  is  on 
him  to  establish  the  exception. 

He  does  not  establish  the  exception  by  proving 
that  his  knowledge  is  a  thing  of  value.  A  man's 
time  is  also  a  thing  of  value,  and  yet,  at  least  in 
criminal  cases,  the  law  may  require  a  witness  to 
attend  and  testify  without  the  payment  of  any  fees 
for  attendance  or  for  mileage.  Such  laws  do  not 
contravene  any  constitutional  provision.1 

As  is  said  in  one  case:  '  'It  is  as  much  the  duty  and 
interest  of  every  citizen  to  aid  in  prosecuting  a  crime, 
as  it  is  to  aid  in  subduing  any  domestic  or  foreign 
enemy;  and  it  is  equally  the  interest  and  duty  of 
every  citizen  to  aid  in  furnishing  to  all,  high  and  low, 
rich  and  poor,  every  facility  for  a  fair  and  impartial 
trial  when  accused;  for  none  is  exempt  from  liability 
to  accusation  and  trial." 

We  are  inclined  to  think,  at  least  in  criminal 
cases,  that  an  expert,  in  the  absence  of  a  statute 
governing  the  case,  should  be  required,  without 
extra  compensation,  to  testify  to  matters  involving 
professional  knowledge  and  skill.  His  protection 
against  unreasonable  demands  for  such  professional 

1  Daily  v.  Multnomah  County,  14  Oreg.  20. 

2  Israel  v.  State,  8  Ind.  467. 


428  EXPERT   TESTIMONY. 

service  lies  in  the  fact  that  he  cannot  be  required  to 
make  any  personal  examination,  or  preliminary 
preparation,  or  to  attend  throughout  the  trial  for 
the  purpose  of  listening  to  the  testimony.  His  opin- 
ion can  be  had  on  a  hypothetical  case,  but  as  a  gen- 
eral rule  something  more  than  that  is  desired,  and 
that  something  cannot  be  had  without  suitable 
compensation. 

The  question  involved  is  one  of  much  importance, 
and  the  authorities  will  be  considered  somewhat  at 
length. 

§  189.  Opinions  of  Writers  on  Medical  Jurispru- 
dence as  to  Additional  Compensation. — Before  exam- 
ining the  decisions  of  the  courts  on  the  question,  at- 
tention is  called  to  the  opinions  of  the  writers  on  med- 
ical jurisprudence.  For  while  these  opinions  cannot 
be  regarded  as  authoritative,  they  are  important,  and 
entitled  to  the  respectful  consideration  of  the  pro- 
fession and  the  courts.  In  "  Ordonaux's  Jurispru- 
dence of  Medicine,"1  that  learned  and  distinguished 
writer  says:  "It  is  evident  that  the  skill  and  pro- 
fessional experience  of  a  man  are  so  far  his  individ- 
ual capital  and  property  that  he  cannot  be  compelled 
to  bestow  it  gratuitously  upon  any  party.  Neither 
the  public,  any  more  than  a  private  person,  have  a 
right  to  extort  services  from  him,  in  the  line  of  his 
profession,  without  adequate  compensation.  On  the 
witness  stand,  precisely  as  in  his  office,  his  opinion 
may  be  given  or  withheld  at  pleasure;  for  a  skilled 
witness  cannot  be  compelled  to  give  an  opinion,  nor 
committed  for  contempt  if  he  refuse  to  do  so.  Who- 
ever calls  for  an  opinion  from  him  m  chief  is  under 
obligation  to  remunerate  him,  since  he  has  to  that 


CASES    FAVORING    THE    RIGHT.  429 

extent  employed  him  professionally;  and  the  expert, 
at  the  outset,  may  decline  giving  his  opinion  until 
the  party  calling  him  either  pays  or  agrees  to  pay 
him  for  it.  When,  however,  he  has  given  his  opin- 
ion, he  has  now  placed  it  among  the  res  gestae,  and 
cannot  decline  repeating  it  or  explaining  it  on  cross- 
examination.  Once  uttered  to  the  public  ear  of  the 
court,  it  passes  among  the  facts  in  evidence." 

So  in  Beck's  Medical  Jurisprudence  the  eminent 
author,  in  considering  the  subject,  comments  as  fol- 
lows: 

11  If  the  duties  on  which  I  have  enlarged  are 
important  to  the  community,  in  promoting  the  pro- 
per administration  of  justice,  ought  not  the  individ- 
uals engaged  in  them  to  receive  adequate  compen- 
sation ?  I  advert  to  this,  not  only  because  it  is  just 
in  principle,  but  because  it  would  remove  all  impu- 
tation of  volunteering  in  criminal  cases.  No  one 
can  refuse  being  a  witness  when  legally  summoned; 
every  one,  I  presume,  may  decline  the  dissection  of 
a  dead  body,  or  the  chemical  examination  of  a  sus- 
pected fluid  ;  and  yet  there  is  not,  I  believe,  an 
individual  attending  on  any  of  our  courts  who  is 
not  paid  for  his  time  and  services,  with  the  excep- 
tion of  such  as  are  engaged  in  these  investigations. 
*  *  *  It  is  quite  time  that  the  medical  pro- 
fession in  this  country  should  rouse  itself  to  a  demand 
of  its  just  rights." 

§  190.  American  Cases  Favoring  the  Right  to 
Extra  Compensation. — The  earliest  of  the  American 
cases  upon  this  subject  seems  to  have  arisen  in  the 
District  Court  of  the  United  States  for  the  District 
of  Massachusetts,  in  1854.  The  question  came  up 

1  Beck's  Medical  Jurisprudence,  920,  921. 


430  EXPERT    TESTIMONY. 

before  SPRAGUE,  J. ,  in  the  following  manner  :  During 
a  trial  upon  an  indictment,  a  motion  for  a  capias 
was  made  by  the  district  attorney,  for  the  purpose 
of  bringing  in  a  witness  subpoenaed  to  act  as  an 
interpreter  of  some  German  witnesses,  but  who  had 
refused  or  neglected  to  attend.  In  answer  to  this 
application,  the  court  said  :  "A  similar  question 
has  heretofore  arisen,  and  I  have  declined  to  issue 
process  to  assist  in  such  cases.  When  a  person  has 
knowledge  of  any  fact  pertinent  to  the  issue  to  be 
tried,  he  may  be  compelled  to  attend  as  a  witness. 
In  this  all  stand  upon  an  equal  ground.  But  to 
compel  a  person  to  attend,  merely  because  he  is 
accomplished  in  a  particular  science,  art,  or  profes- 
sion, would  subject  the  same  individual  to  be  called 
upon  in  every  cause  in  which  any  question  in  his 
department  of  knowledge  is  to  be  solved.  Thus, 
the  most  eminent  physician  might  be  compelled, 
merely  for  the  ordinary  witness  fees,  to  attend  from 
the  remotest  part  of  the  district,  and  give  his  opin- 
ion in  every  trial  in  which  a  medical  question  should 
arise.  This  is  so  unreasonable  that  nothing  but 
necessity  can  justify  it.  The  case  of  an  interpreter 
is  analogous  to  that  of  an  expert.  It  is  not  neces- 
sary to  say  what  the  court  would  do  if  it  appeared 
that  no  other  interpreter  could  be  obtained  by  rea- 
sonable effort.  Such  a  case  is  not  made  as  the 
foundation  of  this  motion.  It  is  well  known  that 
there  are  in  Boston  many  native  Germans,  and 
others  skilled  in  both  the  German  and  English  lan- 
guages, some  of  whom,  it  may  be  presumed,  might, 
without  difficulty,  be  induced  to  attend  for  an  ade- 
quate compensation." 

1  In  the  Matter  of  Roelker,  1  Sprague.  276. 


CASES    FAVORING    THE    RIGHT.  431 

The  question  came  before  the  Supreme  Court  of 
Indiana  in  1877,  in  Buchman  v.  The  State,1  the 
statutory  provision  above  noted  not  having  been 
enacted  at  that  time,  and  that  court  held  that  while 
a  physician  or  surgeon  could  be  required  to  attend  as 
a  witness  to  facts  without  other  compensation  than 
that  provided  by  law  for  other  witnesses,  yet  he 
could  not  be  required  to  testify  as  to  his  professional 
opinion,  without  the  compensation  of  a  professional 
fee.  In  the  opinion  of  the  court  the  professional 
knowledge  of  an  attorney  or  physician  is  to  be 
regarded  in  the  light  of  property,  and  his  profes- 
sional services  are  no  more  at  the  mercy  of  the  public, 
as  to  remuneration,  than  are  the  goods  of  the  mer- 
chant, or  the  crops  of  the  farmer,  or  the  wares  of  the 
mechanic.  "When  a  physician  testifies  as  an  expert, 
by  giving  his  opinion,  he  is  performing,"  says  the 
court,  "  a  strictly  professional  service.  To  be  sure, 
he  performs  that  service  under  the  sanction  of  an 
oath-  So  does  the  lawyer,  when  he  performs  any 
services  in  a  cause.  The  position  of  a  medical  wit- 
ness, testifying  as  an  expert,  is  much  more  like  that 
of  a  lawyer  than  that  of  an  ordinary  witness,  testify- 
ing to  facts.  The  purpose  of  his  service  is  not  to 
prove  facts  in  the  cause,  but  to  aid  the  court  or  jury 
in  arriving  at  a  proper  conclusion  from  facts  other- 
wise proved."  The  court  then  goes  on  to  say  that 
if  physicians  or  surgeons  can  be  compelled  to  render 
professional  services  by  giving  their  opinions  on  the 
trial  of  causes,  without  compensation,  then  an  emi- 
nent physician  or  surgeon  may  be  compelled  to  go 
to  any  part  of  the  State,  at  any  and  all  times,  to 
render  such  service  without  other  compensation  than 

>59  [uJ.  1. 


432  EXPERT    TESTIMONY. 

is  afforded  by  the  ordinary  Witness  fees.  And  this 
the  court  does  not  think  he  can  be  compelled  to  do. 
This  conclusion  is  based  both  upon  general  princi- 
ples of  law  and  the  Constitution  of  the  State,  which 
provides  "that  no  man's  particular  services  shall  be 
demanded  without  just  compensation." 

The  question  came  up  again  in  the  case  of  the 
United  States  v.  Howe,  decided  in  the  United 
States  District  Court  for  the  Western  District  of 
Arkansas.1  Iri  this  case,  which  was  a  prosecution 
for  murder,  a  physician  summoned  as  an  expert, 
being  sworn  refused  to  testify,  unless  first  paid  a 
reasonable  compensation  for  giving  the  results  of 
his  skill  and  experience.  The  court  declined  to 
regard  this  refusal  as  a  contempt  of  court.  The 
distinction  was  sustained  between  a  witness  called 
to  depose  to  a  matter  of  opinion  depending  on 
his  skill  in  a  particular  profession  or  trade,  and  a 
witness  called  to  depose  to  facts  which  he  saw. 
When  he  has  facts  within  his  knowledge,  the  public 
have  a  right  to  those  facts,  but  the  skill  and  profes- 
sional experience  of  a  man  are  so  far  his  individual 
capital  and  property  that  he  cannot  be  compelled 
to  bestow  them  gratuitously  upon  any  party.  That 
the  public  cannot,  any  more  than  a  private  person, 
extort  services  from  a  person  in  the  line  of  his  pro- 
fession or  trade  wdthout  adequate  compensation. 

The  decision  of  the  Indiana  court  in  the  case  above 
referred  to  is  in  harmony  with  the  decisions  of  the 
same  court  holding  that  an  attorney  cannot  be  com- 
pelled without  compensation  to  defend  a  person  ac- 
cused of  crime.  But  the  doctrine  of  that  court 


1  12  Cent.  L.  J.  193.    The  case  does  not  appear  in  the  Federal  Re- 
porter. 


CASES    DENYING    THE    RIGHT.  433 

denying  the  power  to  compel  an  attorney  to  render 
such  services  without  compensation  is  contrary  to 
the  doctrine  which  generally  prevails  in  this  coun- 
try, and  its  decision  as  to  the  right  of  an  expert  to 
extra  compensation,  being  predicated  on  its  own 
peculiar  doctrine  applied  to  attorneys,  is  correspond- 
ingly weakened  as  an  authority. 

§  191.  American  Cases  Denying  the  Right  to  Ex- 
tra Compensation. — A  different  conclusion  to  that 
reached  in  the  foregoing  cases  was  arrived  at  in  the 
Supreme  Court  of  Alabama  in  1875,  in  Ex  parte 
Dement.1  The  prisoner  on  trial  was  charged  with 
murder,  and  the  physician,  after  testifying  that  he 
had  seen  the  deceased  after  he  had  received  the 
wounds  which  the-prosecution  asserted  had  produced 
death,  was  asked  to  state  the  nature  and  character 
of  the  wound  received,  and  its  probable  effect.  This 
he  declined  to  do  upon  the  ground  that  "he  had  not 
been  remunerated  for  his  professional  opinion,  nor 
had  compensation  for  his  professional  opinion  been 
promised  or  secured. ' '  A  fine  was  thereupon  imposed 
upon  him  for  contempt  of  court.  A  motion  to  have  the 
fine  set  aside  upon  the  ground  that  the  court  could 
not  compel  him  to  testify  as  a  professional  expert 
until  compensation  for  his  professional  opinion  had 
been  first  made  or  secured,  having  been  overruled, 
the  case  was  taken  on  appeal  to  the  Supreme  Court, 
which  affirmed  the  ruling.  In  their  decision,  after 
an  examination  of  the  authorities,  the  court  say  : 
"  It  will  be  noticed  that  it  has  not  been  adjudged  in 
any  of  the  cases  cited,  that  a  physician  or  other  per- 
son examined  as  an  expert  is  entitled  to  be  paid  for 
his  testimony  as  for  professional  opinions.  The  re- 

1  53  Ala.  389. 

(28)    , 


434  EXPERT    TESTIMONY. 

ports  contain  nothing  to  this  effect.  The  English 
cases  only  indicate,  and  it  is  implied  by  the  decision 
of  Judge  SPRAGUE  (In  the  matter  of  Roelker),1  that 
persons  summoned  to  testify  as  experts  ought  to  re- 
ceive compensation  for  their  loss  of  time.  And  it  is 
to  be  inferred  that  the  judges  delivering  some  of  the 
opinions  thought  the  time  of  such  a  witness  ought 
to  be  valued,  in  the  language  of  the  English  statute, 
'  according  to  his  countenance  and  calling.'  But  it 
is  not  intimated  by  any  of  them,  that  a  physician, 
when  testifying,  is  to  be  considered  as  exercising  his 
skill  and  learning  in  the  healing  art,  which  is  his 
high  vocation;  or  that  a  counselor  at  law,  in  the 
same  situation,  is  exerting  his  talents  and  require- 
ments in  professionally  investigating  and  upholding 
the  rights  of  a  client.  If  this  were  so,  each  one 
should  be  paid  for  his  testimony  as  a  witness,  as  he 
is  paid  by  clients,  or  patients,  according  to  the  im- 
portance of  the  case  and  his  own  established  reputa- 
tion for  ability  and  skill.  But  in  truth  he  is  not 
really  employed  or  retained  by  any  person.  And 
the  evidence  he  is  required  to  give  should  not  be 
given  with  the  intent  to  take  the  part  of  either  con- 
testant in  the  suit,  but  with  a  strict  regard  to  the 
truth,  in  order  to  aid  the  court  to  pronounce  a  cor- 
rect judgment."  It  is  to  be  observed  that  this  case 
was  decided  two  years  prior  to  the  case  of  Buchman 
v.  The  State,  in  which  the  right  to  extra  compensa- 
tion was  grounded,  not  upon  the  loss  of  time,  upon 
which  the  Alabama  court  comments  disapprovingly, 
but  upon  the  ground  that  professional  knowledge 
constitutes  property  of  which  he  cannot  be  deprived 
without  just  compensation. 

1  Sprague's  Decisions,  276. 


CASES    DENYING    THE    RIGHT.  435 

In  1879,  the  question  came  up  before  the  Court 
of  Appeals  of  Texas  in  Summer  v.  State.1  In  this 
case,  the  defendant,  being  on  trial  for  murder,  the 
State  called  a  medical  practitioner,  one  Dr.  Spohn, 
who  testified  that  he  had  attended  the  deceased, 
and  had  made  a  post-mortem  examination,  but  de- 
clined to  state  the  cause  of  his  death.  In  his  testi- 
mony he  said :  "I  found  the  deceased  breathing, 
but  unconscious;  had  a  contusion  upon  the  left  side 
of  the  head,  but  no  exterior  evidence  of  fractured 
skull ;  removed  the  patient  to  town,  and  attended 
until  the  next  day,  when  he  died;  after  death, 
made  a  post-mortem  examination,  but  I  decline  to 
state  the  cause  of  the  man's  death,  as  my  knowl- 
edge was  obtained  by  professional  skill  and  from 
the  deductions  of  experience,  which  I  consider  my 
own  property,  and  which  the  county  of  Neuces  has 
persistently  refused  to  pay  for.  I  have  no  knowl- 
edge of  the  actual  cause  of  the  man's  death,  save 
through  the  post-mortem  examination  alluded  to." 
The  trial  court  sustained  this  refusal  to  disclose  the 
knowledge  thus  acquired,  upon  the  ground  that  not 
having  been  paid,  he  could  not  be  compelled  to 
testify  as  to  the  same.  But  the  Court  of  Appeals 
viewed  the  matter  in  a  different  light,  and  expressed 
itself  as  follows:  "The  court  can  compel  a 
physician  to  testify  as  to  the  result  of  a  post-mor- 
tem examination  ;  and  it  is  to  be  regretted  that  a 
member  of  a  profession  so  distinguised  for  liberal 
culture  and  high  sense  of  honor  and  duty  should 
refuse  to  testify  in  a  cause  pending  before  the  courts 
of  his  country,  involving  the  life  and  liberty  of  a 
fellow  being,  and  the  rightful  administration  of  the 

1  5  Court  of  Appeals,  374. 


436  EXPERT    TESTIMONY. 

laws  of  a  common  country.  Dr.  Spohn  has  doubt- 
less been  misled,  in  taking  the  position  he  did,  by 
the  misconception  of  certain  Avriters  on  medical 
jurisprudence." 

The  court  then  refers  to  Ex  parte  Dement,  and 
concludes  as  follows  :  "A  medical  expert  could  not 
be  compelled  to  make  a  post-mortem  examination 
unless  paid  for  it ;  but  an  examination  having  al- 
ready been  made  by  him,  he  could  be  compelled  to 
disclose  the  result  of  that  examination." 

In  1887,  the  question  Avas  raised  in  the  Supreme 
Court  of  Minnesota,  in  a  trial  of  one  accused  of 
rape.  A  physician  was  asked:  "Wouldn't  it  be 
impossible  for  this  prosecutrix,  after  having  been 
raped  the  night  previous,  to  sleep  soundly  and  do 
her  work  the  next  day  ?"  He  declined  to  answer, 
and  the  Supreme  Court  in  passing  on  it  said  :  "In 
this  State  no  witness  can  refuse  to  answer  a  ques- 
tion on  the  ground  that  his  answer  will  be  what  is 
known  as  expert  evidence  ;  and  this,  whether  he 
has  been  summoned  or  paid  as  an  expert  or  not."1 

In  1884,  a  case  came  before  the  Supreme  Court  of 
Illinois.  In  that  case  a  physician,  without  making 
any  objections  to  doing  so,  testified  that  he  had  found 
no  bruises  or  signs  of  violence  upon  a  person,  and 
that  he  found  him  complaining  of  "  dizziness,  and 
buzzing  in  his  head  and  ears,  and  was  laboring 
under  the  hallucination  that  certain  parties  were  in 
pursuit  of  him,  and  were  seeking  to  harm  him." 
He  was  then  shown  an  instrument  known  as  a 
policeman's  "  billy,"  and  was  asked  whether  a  blow 
struck  with  it  would  or  would  not  be  likely  to  pro- 
duce upon  the  person  struck  a  condition  similar  to 

1  State  v.  Teipner,  36  Minn.  532,  537. 


EXTRA    COMPENSATION.  437 

that  in  which  he  found  the  person  in  question.  The 
witness  stated  that  he  regarded  the  question  as 
calling  for  a  professional  opinion,  and  declined  to 
answer  unless  first  paid  a  fee  of  $10.  The  Supreme 
Court  held  that  he  was  bound  to  answer.  They 
say  :  "  Having  without  objection  stated  the  condi- 
tion of  the  patient  he  had  visited  professionally, 
the  witness  could  not,  under  any  rule  of  law,  refuse 
to  state  what  would  cause  the  symptoms  he  discov- 
ered to  exist.  That  was  pertinent  to  the  subject 
about  which  he  he  had  testified  voluntarily."  The 
court  thought  it  unnecessary  to  consider  the  gen- 
eral question  of  whether  an  expert  could  be  com- 
pelled, without  extra  compensation,  to  give  expert 
testimony  concerning  a  matter  on  which  he  had 
not  previous^  testified. l 

In  a  recent  case  in  one  of  the  inferior  courts  of 
Pennsylvania,  it  was  decided  that  a  physician,  sworn 
as  a  witness  at  a  coroner's  inquest,  could  not  de- 
cline to  state  his  opinion  as  to  the  effect  of  certain 
medicines  administered  to  the  deceased,  but  that  he 
was  bound  to  answer  without  the  payment  of  a  pro- 
fessional fee.2 

§  192.  Extra  Compensation  Allowed  in  England. 
— In  Betts  v.  Clifford,3  Lord  CAMPBELL  declared  that 
a  scientific  witness,  or  expert,  was  not  bound  to  at- 
tend upon  being  served  with  a  subpoena,  and  that  he 
ought  not  to  be  subpoenaed.  If  the  witness,  how- 
ever, knew  any  question  of  fact,  he  might  be  com- 
pelled to  attend,  but  he  could  not  be  compelled 
to  attend,  to  speak  merely  to  matters  of  opin- 


1  Wright  v.  People,  112  111.  540. 

2  Commonwealth  v.Higgins,  5  Kulp  (Pa.),  269. 

3  Warwick  Lent  Assizes,  1858. 


438 


EXPERT    TESTIMONY. 


The  same  distinction  was  also  taken  in  Webb 
v.  Page,1  which  was  a  case  in  which  a  witness  had 
been  called  by  the  plaintiff  to  testify  as  to  the  dam- 
age sustained  by  certain  cabinet  work,  and  the  ex- 
pense necessary  to  restore  or  replace  the  injured  ar- 
ticles. The  witness  having  demanded  compensation, 
Mr.  Justice  MAULE  said:  "There  is  a  distinction 
between  the  case  of  a  man  who  sees  a  fact,  and  is 
called  to  prove  it  in  a  court  of  law,  and  a  man  who 
is  selected  by  a  party  to  give  his  opinion  on  a  mat- 
ter on  which  he  is  peculiarly  conversant  from  the 
nature  of  his  employment  in  life.  The  former  is 
bound,  as  a  matter  of  public  duty,  to  speak  to  a  fact 
which  happens  to  have  fallen  within  his  own  knowl- 
edge; without  such  testimony  the  course  of  justice 
must  be  stopped.  The  latter  is  under  no  such  obli- 
gation; there  is  no  such  necessity  for  his  evidence, 
and  the  party  who  selects  him  must  pay  him."  Ac- 
cording to  these  cases,  therefore,  an  expert  is  under 
no  obligation  to  testify  as  to  matters  of  opinion,  at 
least  in  civil  cases.  If  his  testimony  is  desired,  the 
party  desiring  it  must  first  render  him  such  compen- 
sation as  his  services  are  worth.  It  is  also  to  be 
noticed  that,  in  England,  it  has  been  held,  in  civil 
cases  at  least,  that  a  professional  man,  even  though 
called  to  testify  to  facts,  and  not  to  opinions,  is  entitled 
to  extra  compensation  on  the  higher  scale  allowed 
under  the  statute  of  Elizabeth,2  which  provides  that 
the  witness  must  "  have  tendered  to  him,  according 
to  his  countenance  or  calling,  his  reasonable 
charges."  In  a  case  decided  in  1862,  the  expenses 
of  an  attorney,  called  as  a  witness,  but  who  did  not 

1 1  Car.  &.  K.  25. 
2  5  Eliz.  ch.  9. 


EXTRA    COMPENSATION.  439 

give  professional  evidence,  were  allowed  by  the 
Master,  on  the  higher  scale  allowed  professional 
witnesses.  This  allowance  was  held  proper  on  mo- 
tion to  show  cause,  and  Mr.  Chief  Justice  EARL  said: 
'  We  do  not  approve  of  the  rule  which  is  said  to 
prevail  in  criminal  cases,  that  if  a  surgeon  is  called 
to  give  evidence  not  of  a  professional  character  he 
is  only  to  have  the  expenses  of  an  ordinary  witness. 
We  think  the  Master  was  quite  right  in  allowing  the 
expenses  of  this  witness  on  the  higher  scale."1  So 
also  in  Turner  v.  Turner  *  the  same  principle  was 
applied  by  the  vice-chancellor  in  the  case  of  a  barris- 
ter. The  theory  seems  to  be  that  the  time  of  pro- 
fessional men  is  more  valuable  than  the  time  of  non- 
professional  men,  and  that  they  should  be  compen- 
sated accordingly.  It  has  been  suggested  that  the 
rule  is  a  hard  one,3  and  it  may  be  considered  doubt- 
ful whether  it  can  stand  the  test  of  examination. 

§  193.  The  Effect  of  Making  Extra  Compensation. 
— It  is  undoubtedly  the  practice  in  all  important 
cases,  for  the  parties  calling  experts,  or  professional 
witnesses,  to  pay  them  an  additional  compensation. 
And  it  is  not  considered  contrary  to  the  policy  of 
the  law  that  these  witnesses  should  be  specially 
feed.  For  if  special  compensation  was  not  made  or 
permitted,  the  testimony  of  such  witnesses  could  not 
be  secured  without  great  pecuniary  loss  and  perhaps 
could  not  be  secured  at  all.  While  the  question  as  to 
the  amount  paid,  or  agreed  to  be  paid  in  such  cases, 
cannot  affect  in  the  least  the  regularity  of  the  trial, 


1  Parkinson  v.  Atkinson,  31  L.  J.  (N.  S.)  C.  P.  199. 
*5  Jur.  (N.S.)  839. 

3  See  Lonergan  v.  Royal  Exchange  Assurance,  7  Bing.  725,  727;  Col- 
lins v.  Godefroy,  1  Barn.  &  Adol.  930. 


440  EXPERT    TESTIMONY. 

yet  it  is  stated  that  it  may,  perhaps,  properly  affect 
the  credit  of  the  witness  with  the  jury.1 

§  194.  Special  Compensation  to  Experts  Employed 
by  the  State  in  Criminal  Cases. — Even  in  the  absence 
of  express  statutory  provision  authorizing  it,  it  has 
been  the  practice  in  many  of  the  States,  in  criminal 
cases,  to  make  a  proper  compensation  to  the  experts 
summoned  by  the  government.  As  lawyers  who  are 
employed  by  the  government  to  assist  in  the  pros- 
ecution of  the  criminal,  receive  a  special  compensa- 
tion, so  the  experts  receive  a  special  compensation; 
and  this  is  allowed  under  certain  statutory  provisions 
authorizing  the  allowance  of  accounts  for  necessary 
services  and  expenses. 

§  195.  Special  Compensation  to  Experts  Sum- 
moned for  the  Defense  Paid  out  of  the  Public  Treas- 
ury.— The  Supreme  Court  of  Massachusetts,  in 
1870,  had  its  attention  called  to  the  right  to  allow 
the  prisoner's  counsel,  in  the  case  of  an  indictment 
for  murder,  to  tax  as  a  part  of  the  cost  to  be  paid 
out  of  the  public  treasury,  extra  compensation  to 
the  experts  employed  by  him,  as  apart  of  the  neces- 
sary expense  of  the  trial,  and  as  such  to  be  allowed 
under  the  statutes  referred  to  in  the  preceding  sec- 
tion. As  the  question  is  an  important  one  we 
quote  from  the  decision,  allowing  such  taxation,  as 
follows  : 

"  Whenever  the  prosecuting  officer  thinks  the  in- 
terests of  justice  require  it,  we  do  not  doubt  that  he 
is  authorized,  by  the  statutes  above  mentioned,  to 
employ  experts  to  make  proper  investigations  for 
ascertaining  the  truth,  of  a  case,  and  that  it  is 
proper  for  him  in  some  capital  cases  to  enable  the 

1  See  People  v  Montgomery,  13  Abb.  Pr.  (X.  S.)  220. 


EXPENSE   OF    SERVICES.  441 

prisoner's  counsel  to  make  similar  investigations, 
and  to  procure  the  attendance  of  experts  at  the 
trial,  if  the  prisoner  is  not  able  to  do  so  ;  and  the 
court  is  authorized  to  allow  a  reasonable  compensa- 
tion to  such  experts  for  their  services,  both  for  at- 
tending the  trial,  and  for  their  prior  investigations. 
This  is  not  on  the  ground  that  the  statute  has  given 
to  a  prisoner  the  right  to  such  aid  at  the  expense  of 
the  public  treasury ;  but  on  the  ground  that  it  is 
for  the  interest  of  the  commonwealth,  in  the  case 
then  before  the  court,  that  all  proper  investigations 
should  be  made,  in  order  to  guard  against  the 
danger  of  doing  injustice  to  the  prisoner  in  a  case 
where  he  is  exposed  to  so  great  a  penalty.  *  *  * 
We  do  not  think  the  prosecuting  officer  or  the  court 
would  be  authorized  to  allow  the  charges  of  all  such 
persons  as  the  prisoner  would  have  a  right  to  em- 
ploy as  experts  at  his  own  expense,  without  regard 
to  their  character  or  to  the  need  of  employing  them 
in  the  case.  But  the  assent  of  the  prosecuting  of- 
ficer should  be  obtained  beforehand  to  the  employ- 
ment of  such  experts  as  may  be  selected  and  agreed 
upon,  or,  in  the  case  of  his  refusal  to  assent,  ap- 
plication should  be  made  to  the  court  to  appoint 
the  experts.  This  would  be  the  more  proper  course 
of  proceeding,  if  the  prisoner  desires  to  have  the 
experts  called  by  him  paid  out  of  the  public  treas- 


urv.' 


§  196.  Taxing  Expense  of  Services  of  an  Expert 
as  Costs. — If  either  party  sees  proper  to  employ  the 
services  of  an  expert  for  his  own  benefit,  the  court 
will  not,  in  the  absence  of  a  statutory  provision 
authorizing  it,  require  the  opposite  party  to  pay  for 

1  Attorney- General  Petitioner,  104  Mass.  537. 


442  EXPERT   TESTIMONY. 

the  services  thus  rendered  by  charging  the  same  as 
a  part  of  the  costs  of  the  action.1  In  an  action  for 
the  dissolution  of  a  partnership  and  for  an  account- 
ing, one  of  the  parties  employed  an  expert  to  ex- 
amine the  books  of  the  partnership,  and  afterwards 
sought  to  have  the  expense  of  such  services  taxed 
as  costs  against  the  losing  party.  In  declining  to 
allow  them  to  be  so  taxed  the  court  said  :  "If  the 
services  of  an  expert  are  necessary  for  the  proper 
presentation  and  determination  of  the  case, 
he  should  be  appointed  by  and  under  the 
direction  of  the  court.  When,  as  in  this 
case,  he  is  the  employee  of  one  of  the 
parties,  the  temptation  to  act  in  the  interest  of  such 
party  must  be  apparent.  Therefore,  in  order  to  se- 
cure his  fair  and  disinterested  services,  he  should 
be  appointed  by  the  court,  and  not  by  either  of  the 
parties." 

1  Faulkner  v.  Hendy,  79  Cal.  265  (1889)  ;  Mark  v.  City  of  Buffalo,  87 
N.  Y.  184, 189.    And  see  Haynes  v.  Mosher,  15  How.  Pr.  216. 
2.Faulkner  v.  Hendy,  79  Cal.  265. 


OPINION    ON    FACTS.  443 


CHAPTER  XI. 


THE    WEIGHT    OF   EXPERT   TESTIMONY. 

SECTION. 

197.  The  Right  of  a  Court  to  Express  an  Opinion  on  the  Facts. 

198.  The  Right  of  a  Court  to  Give  Cautionary  Instructions  in  Certain 

Cases. 

199.  Why  Expert  Testimony  Should  in  Some  Cases  be  Received  with 

Caution. 

200.  Cases  Holding  that  Expert  Testimony  Should  be  Received  with 

Caution. 

201.  Cases  Holding  that  Expert  Testimony  Should  be  Considered  as 

other  Testimony,  and  Tried  by  the  Same  Tests. 

202.  Cases  Holding  that  Expert   Testimony  is  Entitled  to  Little 

Weight. 

203.  Cases  Holding  that  Expert  Testimony  in  Matters  of  Medical 

Science  is  Entitled  to  Great  Weight. 

204.  Cases  Denying  that  the  Testimony  of  Physicians  as  to  Mental 

Condition  is  Entitled  to  Greater  Weight  than  that  of  Ordinary 
Witnesses. 

205.  The  Testimony  of  a  Family  Physician  as  to  Mental  Condition — 

Weight  Accorded  to. 

206.  The  Different  Theories  Discussed. 

207.  The  Right  and  Duty  of  the  Jury  as  to  Expert  Testimony. 

§  197.  The  Right  of  a  Court  to  Express  an  Opin- 
ion on  the  Facts. — We  have  pointed  out  heretofore 
that  it  is  the  province  of  the  court  to  decide  whether 
a  witness  is  competent  to  give  testimony,  and  whether 
the  testimony  it  is  proposed  he  shall  give  is  admis- 
sible in  evidence  in  the  particular  case.  And  we 
have  seen  that  the  court  may  properly  instruct  the 


444  EXPERT  TESTIMONY. 

jury  to  disregard  the  testimony  of  experts  when  that 
testimony  is  based  on  an  hypothesis  which  the  jury 
find  to  be  not  in  accordance  with  the  facts.1  It  is 
now  our  purpose  to  consider  the  functions  of  the 
jury  in  passing  on  expert  testimony  in  general.  It 
is  important  to  keep  in  mind  that  in  the  administra- 
tion of  justice  there  is  a  division  of  functions  between 
court  and  jury,  which  it  is  essential  that  both  court 
and  jury  should  respect.  For  while  it  is  the  func- 
tion of  the  court  to  rule  on  the  competency  of 
witnesses  and  the  admissibility  of  evidence,  it  is  a 
fundamental  and  well  established  principle  of  law 
that  the  Aveight  which  is  to  be  accorded  to  the  evi- 
dence when  admitted  is  a  question  that  lies  within 
the  province  of  the  jury  to  determine. 

After  the  evidence  has  been  heard,  and  the  argu- 
ments of  counsel  have  been  made,  the  trial  judge 
instructs  the  jury  as  to  the  rules  of  law  by  which 
that  body  is  to  be  governed  in  arriving  at  its  verdict. 

In  delivering  this  "charge"  it  is  understood  that 
the  judge  is  at  liberty  to  recall  to  the  minds  of  the 
jury  the  testimony  which  has  been  given,  and  that 
it  is  his  duty  to  state  the  law  by  which  the  matter 
in  issue  is  to  be  decided.  The  judge  has  no  right, 
however,  to  take  away  from  the  jury  the  decision 
of  any  question  of  fact,  neither  can  he  deprive  it  of 
the  right  to  determine  what  credit  shall  be  given  to 
the  testimony.  That  the  weight  to  be  accorded  to 
testimony  is  a  question  for  the  jury  is  a  well  estab- 
lished rule  as  to  evidence  in  general.2  And  the 


1  See  section  32. 

2  Bowman  v.  Smith,  1  Strobh.  (S.  C.)  246;  Keister  v.  Miller,  25  Pa.  St. 
481;  State  v.  Hogard,  12  Minn.  293;  State  v.  Upton,  20  Mo.  397;  Kelly 
v.  Emery,  75  Mich.  147, 152;  Conely  v.  McDonald,  40  Mich.  150, 158; 
People  v.  Barry,  31  r.al.  357. 


OPINION    ON    FACTS.  445 

same  principle  in  this  respect  is  applied  to  the  tes- 
timony of  experts,  that  is  applied  to  the  testimony 
of  ordinary  witnesses.1 

But  while  the  court  informs  the  jury  that  it  is  its 
privilege  to  say  what  witnesses  are  worthy  of  belief, 
the  judge  sometimes  casts  discredit  on  the  testimony 
of  a  witness  by  expressing  his  own  opinion  concern- 
ing the  evidence.  Whether  the  court  has  the  right 
thus  to  express  its  own  opinion  has  been  a  subject 
of  conflicting  decisions.  The  English  courts  have 
recognized  the  principle  that  a  judge's  expression  of 
opinion  on  matters  of  fact  is  not  reversible  error,  if 
the  jury  is  informed  and  made  to  understand  that 
it  is  not  bound  to  follow  the  opinion  expressed,  but 
has  the  right  and  duty  to  decide  for  itself.2  And  so 
in  the  Federal  Courts  of  the  United  States  it  is 
settled  that  a  case  will  not  be  reversed  because  the 
court  has  expressed  itself  on  the  facts,  provided  no 
rule  of  law  has  been  incorrectly  stated,  and  all  mat- 
ters of  fact  have  been  ultimately  submitted  to  the 
jury.3  Some  of  the  State  courts  have  asserted  a 
similar  doctrine.4  But  in  some  of  the  States  the 

1  Mitchell  v.  State,  58  Ala.  418 ;  Delaware,  etc.  Steam-boat  Co.  v.  Starrs, 
69  Pa.  St.  36,41;Sikes  v.  Paine,  10  Ired.  (N.C.)  Law,  282;  Davis  v.  State, 
35  Ind.  196;  Forgery  v.  First  National  Bank,  66  lud.  123;  Howard  v. 
Providence,  6  R.  I.  516;  Pannell  v.  Commonwealth,  86  Pa.  St.  260,  269; 
Snyder  v.  State,  70  Ind.  349;  Johns  v.  Thompson,  72  Ind.  167;  Flynt  v. 
Bodenhamer,  80  X.  C.  205;  State  v.  Secrest,  80  N.  C.  450;  Keithsburg, 
etc.  R.  R.  Co.  v.  Henry,  79  111.  290;    Pratt  v.  Ra,wson,  40  Vt.  183,  188; 
Tatuin  v.  Mohr,  21  Ark.  354;  Humphries  v.  Johnson,  20  Ind.  190. 

2  Taylor  v.  Ashton,  11  M.  &  W.  400;  Davidson  v.  Stanley,  2  M.  &  G. 
721;  Darby  v.  Ouseley,  1  H.  &  X.  1;  Solarte  v.  Melville,  7  B.  &  C.  430. 

s  Lovejoy  v.  United  States,  128  U.  S.  171;  Rucker  v.  Wheeler,  127  U. 
S.  85,  93;  United  States  v.  Reading  R.R.  Co.,  123  U.S.  113, 114;  St. 
Louis,  etc.  R.  R.  Co.  v.Vickers,  122  U.S.  360;  Vicksburg,etc.R.  R.  Co. 
v.  Putnam,  118  U.  S.  545,  553;  Tracy  v.  Swartout,  10  Pet.  80;  Games  v. 
Stiles,  14  Pet.  322. 

4  Sheahan  v.  Barry,  27  Mich.  217,  226;  People  v.  Rathbuu.  21  Wend. 
(X.  Y.)  509;  Commonwealth  v.  Child,  10  Pick.  (Mass.)  2,V2:  .Swift  v. 


446  EXPERT  TESTIMONY. 

courts  are  expressly  prohibited,  either  by  constitu- 
tional or  statutory  provision,  from  charging  juries 
in  respect  to  matters  of  fact.1  When  such  constitu- 
tional or  statutory  provisions  exist  it  is  unquestion- 
ably reversible  error  for  a  judge  to  express  any  opin- 
ion as  to  the  credibility  of  witnesses,  or  as  to  the 
weight  of  the  testimony.2  And  in  some  cases,  where 
no  such  constitutional  or  statutory  restraints  exist, 
there  have  been  expressions  to  the  effect  that  the 
practice  of  expressing  an  opinion  on  the  facts  is  a 
dangerous  one,  and  not  to  be  generally  indulged  in, 
and  not  a  few  cases  have  been  reversed  where  it  has 
been  done.3 

§  198.  The  Bight  of  a  Court  to  Give  Cautionary 
Instructions  in  Certain  Cases. — The  expression  of  an 
opinion  by  the  court  as  to  whether  a  witness  is 
worthy  of  belief,  or  as  to  whether  certain  testimony 
is  worthy  of  credit,  is  one  thing,  and  the  giving  by 
the  court  of  cautionary  instructions  concerning  the 
credibility  of  certain  classes  of  witnesses,  or  the  pro- 
bative value  of  certain  kinds  of  testimony,  is  another 
matter,  and  one  that  we  shall  now  consider.  The 
question  is  whether  a  court  can  properly  give  cau- 

Stevens,  8  Conn.  431 ;  Gale  v.  Spoouer,  11  Vt.  152 ;  Bruch  v.  Carter,  32 
N.  J.  Law,  554,  555;  Ware  v.  Ware,  8  Me.  42,  59;  Flanders  v.  Colby,  28 
N.  H.  34,  39;  Patterson  v.  Colebrook,  29  N.  H.  94;  Ames  v.  Cannon 
River  Mfg.  Co.,  27  Minn.  245;  Bonner  v.  Herrick,  99  Pa.  St.  220. 

1  See  Ala.  Code,  1886,  §  2754;    California  Const,  of  1879,  art.  6,  §  19; 
Georgia  Rev.  St.  1873,  §  3284;  Mass.  Pub.  Sts.  1882,  ch.  153,  §  5;  Nevada 
Const.  1864,   art.  6,  §  12;    S.  Car.  Const.  1868,  art.  4.  §  26;  Tenn.  Const. 
1870,  art.  6,  §  9. 

2  Crutchfield  v.  Richmond,  etc.  R.  R.  Co.,  76  N.  C.  320;  State  v.  Small- 
wood,  75  ST.  C.  104;    Ledbetter  v.  State,  21  Tex.  App.  344;    Kimbro  v. 
Hamilton,  28  Tex.  560;  Morris  v.  Laehman,  68  Cal.  109,  113. 

3  See  People  v.  Gastro,  75  Mich.  127,  128;  People  v.  Lyons,  49  Mich. 
78,  82;  Beurmann  v.  Van  Buren,  44  Mich.  496;  Hall  v.  People,  39  Mich. 
717;  Richards  v.  Fuller,  38  Mich.  653,  657;  Welch  v.  Ware.  32  Mich.  77; 
Perrott  v.  Shearer,  17  Mich.  48;  Knowles  v.  People,  15   Mich.  408,  412. 


CAUTIONARY    INSTRUCTIONS.  447 

tionary  instructions  concerning  the  value  and  weight 
of  expert  testimony. 

That  in  certain  classes  of  cases  courts  are  allowed 
to  give  cautionary  instructions  is  clear  enough.  For 
example,  take  the  case  of  detectives,  who  have 
entered  into  the  apparent  prosecution  of  the  pur- 
poses of  a  conspiracy  in  order  that  they  may  there- 
after disclose  it,  and  bring  the  parties  concerned 
therein  to  justice,  courts  have  been  allowed  to  say 
to  juries  that  the  testimony  of  this  class  of  individ- 
uals is  to  be  received  with  great  caution.1 

Again,  courts  have  been  allowed  to  inform  juries 
that  great  caution  is  to  be  used  in  considering  the 
testimony  of  an  accomplice.2  So  they  have  been 
permitted  to  instruct  juries  that  they  may  view  with 
strong  suspicion  the  testimony  of  witnesses  who, 
with  intention  to  deceive,  have  sworn  wilfully  and 
knowingly  to  that  which  was  false.3  And  in  some 
cases  courts  have  been  sustained  in  telling  juries 
that  the  law  regards  with  suspicion  the  testimony 
of  persons  nearly  related  to  the  accused,  and  that 
the  jury  may  properly  take  into  consideration  the 
relation  of  the  witnesses  in  estimating  the  credit  to 
be  given  to  their  testimony.*  Likewise  when  wit- 
nesses have  exhibited  feeling  and  partiality  in  giving 
their  testimony,  a  trial  court  has  been  sustained  in 

JPrewit  v.  People,  5  Xeb.  384;  Heldt  v.  State,  20  Neb.  492;  State  v. 
McKean,  4  Gray,  29,  31;  Commonwealth  v.  Graves,  97  Mass.  115;  Rex 
v.  Despard,  28  Howell,  St.  Tr.  346,  498.  And  see  Moller  v.  Moller,  115  N. 
Y.  468. 

2  People  v.  Jeuness,  5  Mich.  305;  State  v.   Williams,  42  Conn.  261 ; 
People  v.  Hare,  57  Mich.  518. 

3  Knowles  v.  The  People,  15  Mich.  412;  Hamilton  v.  People,  29  Mich. 
173;  People  v.  Sprague,  53  Cal.  491;  State  v.  Gee,  85  Mo.   647;  People 
v.  Righetti,  66  Cal.  185. 

4  State  v.  Nash,  Sired.  (N.  C.)  35;  State  v.  Ellington,  7  Ired.  (N.  C.) 
67;  Plo  v.  Bush,  71  Cal.  602. 


448  EXPERT  TESTIMONY. 

pointing  out  this  fact  to  the  jury  as  being  a  circum- 
stance likely  to  affect  their  credit.1  And  in  some  cases 
courts  have  been  allowed  to  tell  juries  that  proof  of 
casual  admissions  constituted  weak  evidence.2  A 
jury  may  properly  be  cautioned  concerning  the  care 
to  be  exercised  in  considering  the  testimony  of  dis- 
agreeing witnesses  ;s  and  they  may  be  told  that  the 
mode  of  impeaching  a  witness  by  proof  of  contradic- 
tory statements  is  liable  to  "close  search  and  careful 
scrutiny. ' ' 

In  the  light  of  the  above  rulings  the  question 
recurs,  whether  a  trial  court  can  tell  a  jury  that 
expert  testimony  is  to  be  received  with  caution,  or 
that  it  is  of  little  value,  or  that  it  is  of  great  value. 

§  199.  Reasons  why  Expert  Testimony  Should  be 
Received  with  Caution. — It  is  asserted,  and  with 
much  truth,  that  experience  has  shown  it  to  be  an 
easy  matter  for  opposing  parties  to  array  expert 
against  expert,  and  opinion  against  opinion,  to 
almost  unlimited  extent.  Thus,  Mr.  Justice  Miller, 
after  stating  that  he,  himself,  had  no  confidence  in 
the  impression  produced  by  any  number  of  ex  parte 
affidavits  of  experts,  has  said  :  "My  own  experience, 
both  in  the  local  courts  and  in  the  Supreme  Court 
of  the  United  States,  is,  that  whenever  the  matter 
in  contest  involves  an  immense  sum  in  value,  and 
when  the  question  turns  mainly  upon  opinions  of 
experts  there  is  no  difficulty  in  introducing  any 
amount  of  them  on  either  side."  Again,  it  is 

1  State  v.  Nat,  6  Jones   (X.  C.),  114. 

2  Haven  v.  Markstrum,  67  Wis.  493;  Jones  v.  Knauss,  31  N.  J.  Eq.  609. 
But  see  Tenor  v.  Johnson,  107  Ind.  69;  Lewis  v.  Christie,  99  Ind.  377. 

8  Johnson  v.  McKee,  27  Mich.  471. 

4  Keator  v.  People,  32  Mich.  487. 

5  Middlings  Purifier  Co.   v.  Christian,  4  Dillon,  448,  459  (1877.)     And 
in  Beaubien  v.  Cicotte,  12  Mich.   459,  502.  Judge  Campbell  alludes  to 


CAUTIONARY    INSTRUCTIONS.  449 

said,  that  expert  witnesses  are  in  the  employ 
of  those  who  summon  them,  and,  therefore,  as  a 
class,  are  not  as  free  from  bias  as  ordinary  wit- 
nesses. Being  in  the  employ  of  those  who  call  them, 
they  are  found  more  liable  to  bias,  and  more  dis- 
posed to  act  as  hired  advocates  than  are  disinterested 
witnesses.  Thus,  in  a  case  in  the  Supreme  Court  of 
California,  that  court  has  said  :  "Expert  witnesses 
ought  to  be  selected  by  the  court,  and  should  be 
impartial  as  well  as  learned  and  skilful.  A  contrary 
practice,  however,  is  now,  probably,  too  well  estab- 
lished to  allow  the  more  salutary  rule  to  be  enforced, 
but  it  must  be  painfully  evident  to  every  practitioner 
that  these  witnesses  are  generally  but  adroit  advo- 
cates of  the  theory  upon  which  the  party  calling 
them  relies,  rather  than  impartial  experts,  upon 
whose  superior  judgment  and  learning  the  jury  can 
safely  rely.  Even  men  of  the  highest  character  and 
integrity  are  apt  to  be  prejudiced  in  favor  of  the 
party  by  whom  they  are  employed,  and,  as  a  matter 
of  course,  no  expert  is  called  until  the  party  calling 
him  is  assured  that  his  opinion  will  be  favorable." 
So  true  is  this  that,  as  is  elsewhere  shown,1  in  some 
countries  the  experts  are  designated  by  the  court,  the 
parties  not  being  free  to  summon  whomsoever  they 
please.  Again ,  an  expert  is  called  to  give  opinion  tes- 
timony, while  ordinary  witnesses  testify,  as  a  rule, 
only  to  facts.  Not  only  is  testimony  to  matter  of 
fact  apt  to  be  more  reliable  in  the  very  nature  of 
things  than  is  testimony  concerning  that  which  is 
mere  matter  of  opinion,  but  the  same  safeguards  in 

the  fact,  "that  in  all  important  litigations  the  experts  are  found  arrayed 
against  each  other." 

1  Grigsby  v.  Clear  Lake  Water  Co.,  40  Cal.  405. 

2  See  section  41,  p.  92. 

(29) 


450  EXPERT  TESTIMONY. 

the  way  of  punishment  for  perjury  cannot  be  thrown 
around  the  one  class  of  testimony  that  can  be  in  the 
case  of  the  other.  Thus  it  has  been  said  that,  "  as 
a  rule,  where  an  issue  is  capable  of  being  proved  by 
facts,  evidence  of  a  lesser  degree,  or  of  a  more  un- 
certain character,  ought  not  to  be  admitted.  Liabil- 
ity of  a  witness  to  the  penalties  of  perjury,  if  he 
corruptly  misstate  facts,  is  one  of  the  securities  for 
truth  which  ought  not  to  be  removed  unless  on  ne- 
cessity. And  in  proportion  as  opinion  is  admitted, 
that  liability  is  removed."  Moreover,  expert  testi- 
mony is  largely  based  on  hypothetical  statements 
of  fact,  and  the  value  of  the  opinion  based  thereon 
must  depend,  at  the  best,  on  the  truth  of  the  facts 
assumed,  which,  therefore,  need  to  be  carefully 
scruntinized. 

It  is  not  surprising,  therefore,  to  find  the  courts 
saying  that,  as  this  kind  of  evidence  is  fraught  with 
danger,2  it  ought  to  be  received  with  caution, 
at  least  in  cases  where  the  testimony  does  not 
relate  to  precise  scientific  facts,  or  to  the  neces- 
sary conclusions  which  result  from  facts  stated, 
but  consists  in  mere  matter  of  opinion  as  to  the 
probable  inferences  which  are  to  be  drawn  from 
certain  facts,  or  is  speculative  and  theoretical  in 
its  nature.  We  shall  see  that  courts  have  not  hesi- 
tated in  such  cases  to  instruct  juries  that  expert  tes- 
timony should  be  received  with  caution.  But  we 
do  not  understand  that  an  instruction  to  a  jury  that 
expert  testimony  is  to  be  received  with  caution,  is 

1  Hayes  v.  Wells,  34  Md.  513. 

2 "The  rule  which  admits  professional  opinions  to  be  received  as  evi- 
dence, a  kind  of  evidence  so  little  reliable,  and  so  fraught  with  danger 
to  those  whose  rights  and  interests  it  is  to  affect  or  control,  ought  not  to 
be  extended."  Parker  v.  Johnson,  25  Ga.  583.  And  see  People  v.  Mor- 
rigan,  29  Mich.  5. 


RECEIVED    WITH    CAUTION.  \~)\ 

equivalent  to  telling  them  that  such  testimony  is  of 
no  value,  or  even  of  very  little  value.  After  cau- 
tiously considering  such  testimony,  to  see  upon  what 
it  rests,  the  reasons  given  for  it,  the  experience  of  the 
witness,  his  means  of  knowledge,  his  skill,  his  free- 
dom from  bias,  the  testimony  may  be  of  great  or  of 
little  value,  as  the  case  may  be. 

§  200.  Cases  Holding:  that  Expert  Testimony 
Should  be  Received  with  Caution. — For  reasons  stated 
in  the  preceding  section,  it  has  been  declared  in  a 
number  of  cases  that  expert  testimony  is  to  be  re- 
ceived with  caution,  and  even,  as  sometimes  ex- 
pressed, with  great  caution. 

Thus,  in  a  case  in  the  Irish  court  of  exchequer  it 
is  stated  generally  that  "all  evidence  of  opinion 
ought  to  be  received  and  considered  with  narrow 
scrutiny,  and  with  much  caution." 

The  Supreme  Court  of  South  Carolina  declare  that 
"all  testimony  founded  upon  opinion  merely  is  weak 
and  uncertain,  and  should  in  every  case  be  weighed 
with  great  caution."2 

The  Supreme  Court  of  Mississippi,  speaking  of 
the  evidence  of  experts  in  handwriting,  declares  that 
it  "ought  to  be  received  and  weighed  cautiously  by 
the  jury."3 

In  a  case  in  California  which  involved  the  compe- 
tency of  a  civil  engineer  to  testify  as  an  expert  as  to 
the  effect  of  obstructions  in  causing  back-water,  the 
court,  discussing  expert  testimony  in  general,  say: 
"such  evidence  should  be  received  with  caution  by 
the  jury,  and  never  allowed,  except  upon  subjects 


1  McFadden  v.  Murdock,  I.  R.  1  C.  L.  211,  218  (1867). 

2  Benedict  v.  Flanigan,  18  S.  C.  506. 

3  Moye  v.  Herndon,  30  Miss.  118. 


452  EXPERT   TESTIMONY. 

which  require  unusual  scientific  attainments  or  pecu- 
liar skill."1 

The  Supreme  Court  of  Ohio  say:  "Medical  testi- 
mony is  of  too  much  importance  to  be  disregarded. 
When  delivered  with  caution,  and  without  bias  in 
favor  of  either  party,  or  in  aid  of  some  speculation 
and  favorite  theory,  it  becomes  a  salutary  means  of 
preventing  even  intelligent  juries  from  following  a 
popular  prejudice,  and  deciding  a  cause  on  incon- 
sistent and  unsound  principles.  But  it  should  be 
given  with  great  care  and  received  with  the  utmost 
caution,  and,  like  the  opinions  of  neighbors  and  ac- 
quaintances, should  be  regarded  as  of  little  weight 
if  not  well  sustained  by  reasons  and  facts  that  admit 
©f  no  misconstructions,  and  supported  by  authority 
of  acknowledged  credit."  The  question  involved 
was  that  of  the  insanity  of  the  person. 

In  a  recent  case  in  one  of  the  Circuit  Courts  of  the 
United  States  where  expert  testimony  in  handwrit- 
ing had  been  introduced  the  jury  were  charged  as 
follows:  "Now,  gentlemen,  assuming  that  both  of 
these  (expert)  witnesses  are  disinterested  and  un- 
biased, and  otherwise  credible,  the  nature  of  that 
class  of  testimony  is  such  that  it  should  be  received 
and  acted  upon  by  you  with  much  caution.  Testi- 
mony of  that  kind  is  not  entitled  to  the  same  weight 
as  the  testimony  of  persons  who  speak  concerning 
matters  within  their  personal  observation,  because 
these  witnesses  simply  express  opinions  which  they 
entertain,  founded  on  the  comparison  made,  and 
you  should  regard  their  statements  in  this  matter  as 
opinions  merely,  and  give  them  such  weight  only  as 


Grigsby  v.  Clear  Lake  Water  Co.,  40  Cal.  390,  405  (1870). 
2  Clark  v.  State,  12  Ohio,  483,  491. 


RECEIVED  WITH  CAUTION.  453 

you  think  they  deserve,  considering  the  experience 
which  the  experts  have  had  in  making  such  com- 
parisons." 

The  Supreme  Court  of  Florida  has  sustained  the 
following  charge  to  a  jury  in  a  capital  case  :  "The 
testimony  of  a  witness  as  a  man  of  science  on  a  sub- 
ject with  which  he  is  familiar  from  knowledge  or 
experience,  is  admissible,  and  you  can  judge  of  its 
force  and  application  from  the  character  of  the  tes- 
timony, the  case  under  consideration,  and  the  sub- 
ject-matter under  examination;  and  you  may  apply 
its  force  as  you  believe  and  understand  its  relation 
to  the  case.  If  they  testify  to  a  scientific  truth,  they 
are  entitled  to  belief.  Yet  they  may  be  received 
with  caution." 

In  a  case  in  New  York  the  distinction  is  brought 
out  between  expert  testimony  as  to  facts  and  as  to 
matter  of  opinion,  in  a  charge  to  a  jury,  which  was 
as  follows:  "There  is  in  regard  to  the  testimony  of 
these  physicians  a  distinction  to  be  made  ;  you  are 
to  distinguish  between  the  facts  they  testify  to  and 
their  opinions.  When  a  physician  testifies  in  regard 
to  a  fact,  you  are  to  believe  it  just  as  you  are  to  be- 
lieve any  other  man  of  equal  credit.  When  they 
testify  to  a  fact  that  they  know  from  their  study  of 
disease,  and  their  characteristics,  and  tell  us  what 
there  is  of  the  facts,  you  are  to  believe  it.  When 
they  testify  in  regard  to  opinions  it  becomes  a  dif- 
ferent question.  *  *  *  In 'considering  their  tes- 
tiniony  you  will  consider,'  in  reference  to  each 
statement,  whether  it  is  a  fact  or  an  opinion;  you 
will  apply  this  rule  to  all  the  facts  connected  with 

1  United  States  v.  Pendergast,  32  Fed.  Rep.  198,200  (1887) 

2  Newton  v.  The  State,  21  Fla.  56,  102. 


454  EXPERT    TESTIMONY. 

the  case  that  are  derived  from  the  investigations 
of  these  physicians.  *  *  *  We  are  not  bound 
to  believe  the  opinion  of  doctors,  unless  they  are 
compatible  with  sound  sense.  Doctors  give  many 
opinions  which  are  merely  speculative;  they  have 
their  theories  and  speculations,  and  the  difficulty 
with  them  many  times  seems  to  be  that  they  are 
hardly  willing  to  admit  that  there  is  much  in  the 
human  system,  its  ailments  and  diseases,  that 
is  beyond  their  knowledge  and  comprehension. 
You  are  not  bound  to  believe  the  opinion  of  a 
doctor  unless  it  comports  with  your  common  sense, 
and  is  consistent  with  the  facts  in  the  case."1  No 
exception  was  taken  to  this  instruction. 

In  a  case  in  the  Supreme  Court  of  New  York,  Mr. 
Justice  Daniels  says  :  "A  mere  expression  of  opin- 
ion as  to  the  weight  or  effect  of  the  evidence,  which 
still  allows  the  jury  to  be  guided  and  governed  by 
their  own  convictions,  forms  no  proper  ground  for 
an  exception.  That  may  be  proper,  and  even  ne- 
cessary, under  certain  circumstances,  to  enable  the 
jury  to  give  appropriate  consideration  to  evidence 
requiring  their  judgment.  The  evidence  of  witnesses 
who  are  brought  upon  the  stand  to  support  a  theory 
by  their  opinions,  is  justly  exposed  to  a  reasonable 
degree  of  suspicion.  They  are  produced,  not  to 
swear  to  facts  observed  by  them,  but  to  express 
their  judgment  as  to  the  effect  of  those  detailed  by 
others,  and  they  are  selected  on  account  of  their 
ability  to  express  a  favorable  opinion,  which,  there 
is  great  reason  to  believe,  is,  in  many  instances,  the 
result  alone  of  employment  and  the  bias  arising  out 
of  it.  Such  evidence  should  be  cautiously  accepted 

1  People  v.  Montgomery,  13  Abbott's  Pr.  207,  220,  223. 


RECEIVED  WITH  CAUTION.  455 

as  the  foundation  of  a  verdict,  and  it  forms  a  very 
proper  subject  for  the  expression  of  a  reasonably 
guarded  opinion  by  the  court.  That  is  often  neces- 
sary to  prevent  the  jury  from  being  led  astray  by 
giving  too  much  weight  to  evidence  really  requiring 
to  be  suspiciously  watched,  and  which  in  many  in- 
stances has  induced  unwarranted  verdicts,  discredit- 
able to  the  administration  of  justice,  as  well  as 
exceedingly  detrimental  to  the  public  interest. 
When  the  comments  of  the  court  are  extended  no 
farther  than  that,  no  fault  can  be  found  with  them 
on  the  part  of  the  accused."  The  case  in  which 
this  language  was  used  was  a  criminal  one,  the 
accused  having  been  convicted  of  committing  an 
assault  upon  his  wife  with  intent  to  kill.  His 
defense  was  insanity,  and  the  accused  claimed  that 
the  trial  court  had  unduly  discredited  the  testimony 
of  the  experts  sworn  on  his  behalf.1 

In  a  recent  case  the  Supreme  Court  of  Michigan 
passed  on  the  following  instruction  :  "The  value 
of  expert  testimony  depends  on  the  circumstances 
of  each  case,  and  of  those  circumstances  the  jury 
must  be  the  judges.  The  jury  must  determine  the 
weight  to  be  accorded  to  it,  but  in  all  cases  the  tes- 
timony of  experts  is  to  be  received  and  weighed 
with  great  caution.  The  evidence  of  a  witness  who 
is  brought  upon  the  stand  to  support  a  theory  by 
his  opinion  is  testimony  exposed  to  a  reasonable 
degree  of  suspicion,  which  there  is  great  reason  to 
believe  is,  in  many  instances,  the  result  alone  of 
emplo3^ment  and  his  bias  arising  out  of  it.  In  many 
cases,  it  is  to  be  feared,  by  giving  too  much  weight 
to  testimony  of  experts,  juries  have  been  induced  to 

1  Templeton  v.  People,  3  Hun,  357;  affirmed  60  N.  Y.  643  (1875). 


456  EXPERT   TESTIMONY. 

render  unwarranted  verdicts,  discreditable  to  the 
administration  of  justice,  as  well  as  exceedingly 
detrimental  to  the  public  interests."  The  ques- 
tion involved  was  that  of  the  insanity  of  the  ac- 
cused, and  there  was  a  conflict  in  the  testimony 
of  the  experts.  The  Supreme  Court  in  passing 
on  the  above  instruction  said  :  "As  the  case  stood 
we  do  not  think  the  expressions  of  the  trial  judge 
concerning  expert  testimony  require  any  censure  or 
animadversion . " ' 

§  201.  Cases  Holding  that  Testimony  Should  be 
Considered  as  Other  Testimony  and  Tried  by  the 
Same  Tests. — It  has  been  said  in  some  of  the  cases 
that  expert  testimony  is  to  be  considered  like  any 
other  testimony,  and  tried  by  the  same  tests.  It  is 
undoubtedly  true  that,  like  any  other  testimony,  it 
is  not  conclusive  upon  the  jury  unless  it  is  believed, 
and  in  forming  an  opinion  upon  it,  as  in  forming 
an  opinion  upon  the  testimony  of  any  ordinary  wit- 
ness, the  jury  will  consider  the  character  of  the  wit- 
ness, his  appearance  on  the  stand,  his  intelligence, 
his  freedom  from  bias  and  his  means  of  knowledge, 
as  well  as  his  liability  to  mistake  in  cases  where  his 
testimony  relates  to  matter  of  opinion.  In  weigh- 
ing the  testimony  of  experts,  as  in  weighing  the  tes- 
timony of  witnesses  in  general,  all  these  things  are 
to  be  considered. 

In  a  case  in  the  Circuit  Court  of  the  United  States 
in  1871,  the  question  being  as  to  the  infringement 
of  a  patent,  Mr.  Justice  Sawyer  instructed  the  jury 
as  follows  :  "  The  testimony  of  the  experts,  which 
has  been  introduced,  you  are  to  consider  like  any 
other  evidence.  You  are  to  tnf  it  by  the  same  tests 

1  People  v.  Perriman,  40  X.  W.  Rep.  425  (1888). 


CONSIDERED    AS    OTHER    TESTIMONY.  457 

that  you  apply  to  the  evidence  of  other  witnesses, 
and  give  it  just  such  credit  and  weight  as  you  deem 
it  entitled  to  from  all  the  circumstances,  and  no 
more." 

In  a  case  in  the  Supreme  Court  of  Indiana  in 
1877,  the  same  doctrine  was  asserted.  The  court 
say:  "The  value  of  such  testimony  depends  as 
much  upon  all  the  facts  and  circumstances  con- 
nected with  each  particular  case  as  that  of  any  other 
class  of  witnesses.  It  is  for  the  court  first  to  decide 
whether  a  witness  is  competent  to  testify  as  an 
expert  ;  but,  wrhen  permitted  to  testify,  an  expert 
stands  substantially  on  the  same  footing  as  any  other 
witness  as  to  credibility.  His  testimony  may  be 
valuable,  or  it  may  not  be,  depending  upon  the 
manner  in  which  it  may  be  able  to  withstand  the 
usual  tests  of  credibility  which  may  be  applied  to 
it.  *  *  *  Experts  may  not  well  understand  the 
subject  about  which  they  testify;  they  may  be 
biased  in  favor  of  the  party  who  calls  them :  they 
may  base  their  conclusions  on  false  theories  or  on 
mistaken  premises,  or  the  facts  may  be  against 
them.  These  objections,  when  well  taken,  go  only 
to  their  credibility,  and  we  know  of  no  rule  which 
applies  them  with  greater  force  t to  experts  than  to 
other  witnesses."  And  subsequently  in  the  same 
court  this  doctrine  was  adhered  to.s 

In  a  case  in  the  Supreme  Court  of  Louisiana-  in 
1849  that  court  declares:  "But  those  opinions  (of 
medical  men)  are  not  conclusive.  They  are  to  be 
weighed,  as  other  evidence,  by  the  jury,  as  the  dis- 


1  Carter  v.  Baker,  1  Sawyer,  512,  525. 

1  Eggersv.  Eggers,  57  Ind.  461. 

3  Cuneo  v.  Bessoni,  63  Ind.  524,  528. 


458  EXPERT    TESTIMONY. 

trict  judge  properly  charged."1  In  another  case 
which  came  before  the  same  court  in  1869  the  court 
observes:  "That  the  opinions  of  medical  men  are 
freely  received  upon  questions  of  professional  skill, 
it  is  equally  true  that  they  ought  also  to  state  the 
facts  on  which  those  opinions  are  based,  and  that 
the  opinions  themselves  are  not  conclusive,  but  must 
be  weighed  as  other  evidence."  In  the  Louisiana 
cases  the  point  the  court  had  before  it  was  whether 
the  jury  were  not  bound  by  the  testimony  of  the 
experts — whether  that  testimony  was  not  absolutel}7" 
conclusive  on  them. 

In  a  case  in  Kansas  that  court  states  that  it  thinks 
as  good  a  general  rule  as  can  be  laid  down  is  that 
announced  by  Mr.  Justice  SAWYER  in  the  case  refer- 
red to  in  the  beginning  of  this  section,  but  it  goes 
on  to  say  that  there  may  be  cases  in  which  it  might 
be  proper  to  charge  that  expert  testimony  should 
be  received  with  caution:3  The  court  did  not  think 
it  was  proper  to  give  such  a  caution  in  the  particu- 
lar case,  as  in  that  case  the  testimony  was  given  by 
physicians  of  high  standing,  and  the  court  thought 
their  testimony  entitled  to  great  weight.  Whether 
an  instruction  that  a  certain  class  of  testimony  should 
be  received  with  caution  is  equivalent  to  an  instruc- 
tion that  it  is  entitled  to  little  weight  is  a  matter  to 
be  considered  later.4 

§  202.  Cases  Holding-  that  Expert  Testimony  is 
Entitled  to  Little  Weight. — It  cannot  be  denied  that 
expert  testimony  has  been  subjected  to  much  unfa- 
vorable criticism,  and  that  authors  and  courts  have 

1  State  v.  Bailey,  4  La.  Ann.  376. 

2  Chandler  v.  Barrett,  21  La.  Ann.  58,  62. 

3  Atchison,  etc.  R.  R.  Co.  v.  Thul,  32  Kan.  255,  261. 

4  See  section  206. 


ENTITLED    TO    LITTLE    WEIGHT.  459 

in  some  cases  not  hesitated  to  assert  that  it  is  en- 
titled to  but  little  credit.  While  much  of  the  cen- 
sure that  has  been  visited  upon  this  class  of  testi- 
mony may  well  be  excused,  yet  it  is  a  mistake  to 
assume  that  expert  testimony  as  a  whole  is  of  little 
value.  For  there  are  many  classes  of  cases  in  which 
such  testimony  is  of  the  highest  value,  and  where 
courts  could  not  get  along  at  all  without  it.  That 
in  many  cases  such  testimony  is  of  little  value,  and 
even  of  no  value,  every  one,  who  has  had  any  expe- 
rience with  expert  testimony,  knows.  In  some  sub- 
jects, especially  in  cases  relating  to  patents  and 
handwriting,  this  class  of  testimony  has  been  much 
discredited.  And  in  some  cases  courts  have  in- 
structed juries  concerning  the  unsatisfactory  char- 
acter of  this  kind  of  evidence. 

For  instance,  the  following  instruction  has  been 
sustained:  "Evidence  of  this  character  (comparison 
of  handwriting  by  experts)  has  been  introduced  in 
the  case  at  bar,  and  it  will  be  for  you  to  say  how 
much  weight  shall  be  given  to  such  testimony,  tak- 
ing into  consideration  the  amount  of  skill  possessed 
by  the  witnesses.  But  while  it  is  proper  to  consider 
such  evidence,  and  to  give  it  such  weight  as  you 
may  think  it  justly  entitled,  yet  it  is  proper  to  re- 
mark that  it  is  of  the  lowest  order  of  evidence,  or 
evidence  of  the  most  unsatisfactory  character.  It 
cannot  be  claimed  that  it  ought  to  overthrow  pos- 
itive and  direct  evidence  of  credible  witnesses  who 
testify  from  their  personal  knowledge,  but  it  is  most 
useful  in  cases  of  conflict  between  witnesses  as  cor- 
roborating witnesses."  Counsel  claimed  that  the 
above  instruction  was  erroneous,  as  it  practically 
destroyed  expert  evidence,  by  taking  from  it  the 


460  EXPERT   TESTIMONY. 

force  and  weight  given  to  it  by  law.  But  in  sustain- 
ing the  instruction  the  court  says:  "The  observa- 
tion and  experience  of  daily  life,  as  well  as  in  the 
administration  of  justice  in  the  courts  of  law,  must 
be  applied  by  judges  and  jurors  to  enable  them  to  de- 
cide to  what  extent  the  mind  should  be  influenced 
by  evidence  submitted  to  them.  *  *  *  The  ef- 
fect, then,  which  all  evidence  has  upon  the  mind  is 
determined  by  observation  and  experience,  the  only 
original  instructors  of  wisdom.  These  teach  that 
the  evidence  of  experts  is  of  the  very  lowest  order, 
and  the  most  unsatisfactory  character.  We  believe 
that  in  this  opinion  experienced  laymen  unite  with 
members  of  the  legal  profession."1  And  in  Vermont 
the  Supreme  Court  of  that  State  declared,  that  if 
the  trial  judge  had  "told  the  jury,  what  to  be  sure 
is  unusual,  as  expressed  in  an  early  case,  that  it  (tes- 
timony of  experts  in  handwriting)  was  entitled  to 
but  little  weight  as  proof  of  the  disputed  fact,  but, 
after  all  leaving  it  for  them  to  weigh  and  consider, 
it  would  not  have  been  an  error."  The  same  court 
in  a  late  case  say:  "It  would  be  trite  to  repeat  the 
very  uniform  expression  of  judges  and  the  books  as 
to  the  small  value  of  this  kind  of  evidence,  yet  it  is 
warrantable  to  say  that  such  expression  is  corrobo- 
rated by  our  own  observation  and  experience  in  judi- 
cial administration . "  In  a  case  in  the  United  States 
Circuit  Court  Mr.  Justice  GRIER  in  speaking  of  ex- 
pert testimony  in  the  matter  of  handwriting,  says  : 
"Whether  the  signatures  appear  to  be  done  by  the 
same  hand,  that,  I  think,  is  a  question  you  can  put 

1  Whittaker  v.  Parker,  42  Iowa,  586.     See,  too,  Borland  v.  Walwrath, 
33  Iowa,  133. 

2  Pratt  v.  Rawson,  40  Vt.  183,  188. 

3  Wright  v.  Williams'  Estate,  47  Vt.  222,  234. 


ENTITLED    TO    LITTLE    WEIGHT.  461 

to  an  expert,  though  the  testimony  is  of  rather  a 
dangerous  character  and  not  much  to  be  relied  on."1 
In  another  case  the  same  justice  sa^ys:  "Opinions 
with  regard  to  handwriting  are  the  weakest  and  least 
reliable  of  all  evidence  as  against  direct  proof  of  the 
execution  of  an  instrument."  In  the  New  Jersey 
Court  of  Chancery  the  following  statement  has  been 
made:  "All  doubt  respecting  the  competency  of  the 
opinion  of  experts  in  handwriting  based  upon  mere 
comparison,  as  evidence,  have  been  removed  by 
statute;  but  it  still  must  be  esteemed  proof  of  low 
degree.  Very  learned  judges  have  characterized  it 
as  much  too  uncertain,  even  when  only  slightly  op- 
posed, to  be  the  foundation  of  a  judicial  decision." 
In  a  case  in  the  Supreme  Court  of  the  District  of 
Columbia  it  has  been  said:  "The  signatures  of  these 
papers  are  claimed  not  to  be  genuine,  and  here  we  are 
treated  to  the  opinion  of  half  a  dozen  men  who  claim 
to  be  experts,  and  who  come  up'  and  give  us  their 
views  as  to  the  genuineness  of  these  signatures.  Of 
all  kinds  of  evidence  admitted  in  a  court,  this  is  the 
most  unsatisfactory.  It  is  so  weak  and.  decrepit  as 
scarcely  to  deserve  a  place  in  our  system  of  jurispru- 
dence."4 And,  notwithstanding  the  evidence  of  the 
experts,  the  court  declared  that  it  was  satisfied  as  to 
the  genuineness  of  the  signatures.  In  the  Su- 
preme Court  of  Michigan  it  is  said:  "Every  one 
knows  how  very  unsafe  it  is  to  rely  upon  any  one's 
opinion  concerning  the  niceties  of  penmanship.  The 
introduction  of  professional  experts  has  only  added 
to  the  mischief,  instead  of  palliating  it,  and  the  re- 

1  United  States  v.  Darnaud,  3  Wall.  Jr.  143,  183. 

2  Turner  v.  Hand,  3  Wall.  Jr.  88,  115. 

3  Mutual  Benefit  Life  Ins.  Co.  v.  Brown,  30  X.  J.  Eq.  193,  201. 

4  Cowan  v.  Beall,  1  McArthur,  270,  274. 


462  EXPERT   TESTIMONY. 

suits  of  litigation  have  shown  that  these  are  often 
the  merest  pretenders  to  knowledge,  whose  notions 
are  pure  speculation.  Opinions  are  necessarily  re- 
ceived, and  may  be  valuable,  but  at  best  this  kind 
of  testimony  is  a  necessary  evil."  Lord  Presi- 
dent Boyle  in  the  Scotch  court  says:  "A  set  of 
engravers  have  been  examined  on  both  sides,  to 
whose  testimony  I  pay  very  little  attention,  as 
their  opinions  are  very  little  to  be  depended  upon. 
In  this  as  in  all  other  cases  they  take  different  sides. 
It  seems  to  be  a  part  of  their  profession  to  take  differ- 
ent sides.  "2  In  a  case  in  England,  in  1822,  ABBOTT,  C. 
J.,  speaking  of  expert  testimony  on  the  subject  of 
handwriting  said  of  it:  "I  have  been  long  of  the 
opinion  that  evidence  of  this  description,  whether 
in  strictness  of  law  receivable  or  not,  ought,  if  re- 
ceived, to  have  no  great  weight  given  to  it."3  And 
in  the  famous  Tracy  Peerage  case,  in  the  House 
of  Lords,  in  1843,  the  case  depending  on  the 
genuineness  of  entries  Avritten  in  an  old  prayer 
book,  and  dated  1728  and  1729,  Lord  Campbell 
said:  ''There  was  a  witness  (Sir  Frederick  Madden) 
who  undertook  to  say  that  it  was  the  handwrit- 
ing of,  about  the  middle  of  the  last  century. 
I  do  not  mean  to  throw  any  reflection  on  Sir 
"Frederick  Madden.  I  dare  say  he  is  a  very  re- 
spectable gentleman,  and  did  not  mean  to  give  any 
evidence  that  was  untrue;  but  really  this  confirms 
the  opinion  I  have  entertained,  that  hardly  any 
weight  is  to  be  given  to  the  evidence  of  what  are 
called  scientific  witnesses;  they  come  with  a  bias  on 
their  minds  to  support  the  cause  in  which  they  are 

1  Matter  of  Alfred  Foster's  Will,  34  Mich.  21,  25. 

2  Turnbull  v.  Dods,  6  Dunlop,  901. 

3  Gurney  v.  Langlands,  5  Barn.  Aid.  330. 


ENTITLED    TO    LITTLE    WEIGHT.  463 

embarked. "  In  the  opinion  of  the  New  York  Court 
of  Appeals  recently  delivered  in  the  famous  Kemrnlrr 
case,  Mr.  Justice  GRAY  has  this  to  say  of  expert  tes- 
timony: "Expert  evidence  is  only,  it  seems  to  me, 
entitled  to  much  importance  in  arriving  at  a  judg- 
ment, when  fairly  given  by  one  properly  accredited 
to  give  it,  through  his  experience,  study  and  scien- 
tific eminence,  and  upon  a  hypothesis  which  shall 
be  true  in  the  relation  of  its  parts  to  the  whole  case 
which  is  the  subject  of  inquiry.  The  frequent  spec- 
tacle of  scientific  experts  differing  in  their  opinions 
upon  a  case,  according  to  the  side  upon  which  re- 
tained, tends  much  to  discredit  such  testimony,  or  to 
impair  its  force  and  usefulness,  and  inclines  us  to  pre- 
fer the  formation  of  an  opinion  upon  the  real  facts, 
when  the  case  is  not  one  beyond  the  penetration  and 
grasp  of  the  ordinary  mind." 

In  People  v.  Morrigan,3  the  Supreme  Court  of 
Michigan,  through  Judge  COOLEY,  thus  expressed 
themselves  on  the  subject  of  expert  testimony: 
"The  experience  of  courts  with  the  testimony  of 
experts  has  not  been  such  as  to  impress  them  with 
the  conviction  that  the  scope  of  such  proofs  should 
be  extended.  Such  testimony  is  not  desirable  in 
any  case  where  the  jury  can  get  along  without  it; 
and  is  only  admitted  from  necessity,  and  then  only 
when  it  is  likely  to  be  of  some  value."  In  a  sub- 
sequent case  the  trial  judge  read  to  the  jury  the  re- 
marks of  the  Supreme  Court  in  Morrigan' s  case,  and 
exception  was  taken  to  his  so  doing,  and  the  case 
carried  to  the  Supreme  Court,  which  held  that  the 
trial  judge  had  committed  no  error.  In  the  second 

1  10  C.  &  F.  154,  191. 

2  People  v.  Kemmler,  119  X.  Y.  580,  583  (1890). 
a  29  Mich.  8. 


464  EXPERT    TESTIMONY. 

case  the  court  say,  Judge  COOLEY  again  giving  the 
opinion:  " Three  exceptions  were  taken  to  portions  of 
the  charge  to  the  jury.  One  of  these  was  to  the 
judge  reading  to  the  jury  remarks  of  this  court  con- 
cerning the  testimony  of  experts  contained  in  the 
report  of  the  case  of  People  v.  Morriyan,  29 
Mich.  8.  The  objection  seems  to  have  been  that 
the  judge  read  a  certain  paragraph  calculated  to  de- 
preciate the  value  of  expert  evidence,  without  giving 
the  context,  or  a  statement  of  the  facts  which  called 
out  the  remarks  read.  But  the  judge  had  an  un- 
doubted right  to  make  the  same  remarks  himself  as 
a  part  of  his  charge,  and  it  was  immaterial  whether 
they  were  original  with  him,  or  were  taken  at 
second-hand  from  some  other  judge  or  other  au- 
thority or  author." 

Law  writers  have  likewise  expressed  unfavor- 
able opinions  of  expert  testimony.  The  leading 
authority  in  England  on  the  law  of  evidence 
thus  writes:  "Perhaps  the  testimony  which  least 
deserves  credit  with  a  jury  is  that  of  skilled 
witnesses.  These  gentlemen  are  usually  required 
to  speak,  not  to  facts,  but  to  opinions;  and  when 
this  is  the  case  it  is  often  quite  surprising  to 
see  with  what  facility,  and  to  what  an  extent, 
their  views  can  be  made  to  correspond  with  the 
wishes  or  the  interests  of  the  parties  who  call  them. 
They  do  not,  indeed,  wilfully  misrepresent  what  they 
think; -but  their  judgments  become  so  warped  by 
regarding  the  subject  in  one  point  of  view  that, 
even  when  conscientiously  disposed,  the}7  are  inca- 
pable of  expressing  a  candid  opinion.  Being  zealous 
partisans,  their  belief  becomes  synonymous  with 

1  People  v.  Niles,  44  Mich.  606,  609  (1880). 


ENTITLED    TO    LITTLE   WEIGHT.  465 

Faith  as  defined  by  the  Apostle,  and  it  too  often  is 
but  'the  substance  of  things  hoped  for,  the  evidence 
of  things  not  seen.'  To  adopt  the  language  of  Lord 
Campbell,1  'skilled  witnesses  come  with  such  a  bias 
on  their  minds  to  support  the  cause  in  which  they 
are  embarked  that  hardly  any  weight  should  be 
given  to  their  evidence.'  ;  And  in  another  part  of 
his  work  the  author  again  declares  that  such  evi- 
dence is  entitled  to  very  little  weight.3  In  still  an- 
other part  of  his  work  he  says:  "Still,  as  experts 
usually  come  with  a  bias  on  their  minds  to  support 
the  cause  in  which  they  are  embarked,  little  weight 
will  in  general  be  attached  to  the  evidence  which 
they  give,  unless  it  be  obviously  based  on  sensible 
reasoning." 

A  writer  in  the  Journal  of  Jurisprudence  (Edin- 
burg),  for  August,  1881,  discusses  the  value  of 
expert  testimony  as  to  handwriting  as  follows  : 

"Evidence  as  to  handwriting  is  extremely  falla- 
cious, and  there  are  some  forgers  extremely  good  at 
their  trade.  In  the  case  of  Englemore  v.  Kingston, 
8  Vesey,  473,  Lord  Eldon,  commenting  on  the  un- 
certainty and  un trustworthiness  of  testimony  as  to 
handwriting,  said  :  'A  singular  circumstance  ap- 
plicable to  this  point  happened  to  me.  A  deed  was 
tried  at  Westminster  throwing  a  good  deal  of  blot 
on  the  persons  who  obtained  it.  The  solicitor,  a 
very  respectable  man,  said  he  felt  satisfaction  that 
there  were  respectable  witnesses.  One  was  the  town 
clerk  of  Newcastle,  and  I  was  the  other.  I  could 
undertake  to  a  certainty  that  the  signature  was  not 

1  Tracy  Peerage  Case,  10  Cl.  &  Fin.  191. 
2 1  Taylor  on  Evidence,  §  58. 
8  Ibid.  §  650. 
*  Ibid.  §  1877. 

(30) 


466  EXPERT   TESTIMONY. 

mine,  having  never  attested  a  deed  in  my  life.  He 
looked  back  to  my  pleadings  ;  was  sure  it  was  my 
signature  ;  and  if  I  had  been  dead,  would  have 
sworn  to  it  conscientiously.'  Nay,  further,  the 
imitation  of  handwriting  is  sometimes  so  adroit  as 
to  deceive,  not  only  persons  familiar  with  the  hand- 
writing, but  even  the  person  whose  name  is  forged. 
The  factor  on  a  large  estate  had  a  clerk  possessed  of 
a  wonderful  facility  for  imitating  handwriting.  The 
factor  being  an  old  and  infirm  man,  used  to  tell  the 
clerk  to  sign  checks  for  him,  which  he  did  in  such 
a  manner  that  nobody  could  tell  the  difference 
between  the  real  and  the  imitated  signature.  The 
clerk  used  also  to  amuse  himself  by  imitating  the 
signature  of  his  master's  son.  The  signatures  were 
very  difficult,  one  being  in -the  shaky  writing  of  an 
old  and  infirm  man,  the  other  in  the  firm  hand  of  a 
strong,  vigorous  young  man  ;  but  both  were  so  per- 
fect that  neither  could  distinguish  the  imitated  sig- 
natures from  their  own.  One  very  remarkable 
instance  of  a  person  being  deceived  by  the  forgery 
of  his  own  signature  happened  in  Scotland  a  few 
years  ago.  We  can  vouch  for  the  truth  of  the  story. 
The  agent  of  a  public  company  issued  some  forged 
bills,  to  which  were  appended  the  names  of  three  of 
the  directors.  He  decamped,  but  was  caught  in 
Paris.  One  of  these  directors,  a  man  of  position 
and  capacity,  a  magistrate  of  a  northern  town,  was 
certain  that  the  names  of  the  other  directors  were 
forged,  but  that  his  own  signature  was  genuine, 
although  he  could  not  imagine  when  or  how  he  had 
come  to  sign  the  bill.  The  director  went  to  Paris, 
and  in  order  to  have  the  culprit  removed  to  this 
country  he  (was)  required  to  make  a  declaration  be- 


ENTITLED    TO    LITTLE   WEIGHT.  467 

fore  a  magistrate.  He  swore  that  the  other  two  sig- 
natures were  forgeries,  but  that  his  own  signature 
— a  very  peculiar  signature — was  genuine.  The 
culprit,  who  knew  that  the  game  was  up,  and  had 
no  objection  to  making  a  clean  breast  of  it,  was 
very  much  amused,  and  informed  the  excellent  mag- 
istrate that  he  had  made  a  mistake,  and  that  the 
whole  of  the  signatures  were  forgeries.  'But  how  did 
you  manage-  to  do  it?'  was  the  natural  inquiry.  The 
man  took  a  pen  and  a  piece  of  paper,  and  without 
a  moment's  hesitation,  scribbled  off  a  signature 
which  the  victim,  if  he  had  not  seen  the  act  done," 
would  have  said  was  his  own.  In  Scotland  the 
courts  have  for  long  placed  very  little  reliance  upon 
evidence  as  to  handwriting,  and  hardly  any  at  all 
upon  the  evidence  of  mere  'experts.'  Perhaps  it 
would  be  more  correct  to  say  that  the  judges  have 
either  refused  to  receive  the  evidence  of  experts,  or 
have  intimated  that  such  evidence  would  produce 
no  impression  on  their  minds." 

In  the  Law  Magazine  and  Review  (London),  for 
February,  1878,  will  be  found  the  following  estimate 
of  expert  evidence:  "It  cannot  be  denied  that  there 
is  on  the  part  of  the  bench  a  strong  a  priori  distrust 
of  expert  evidence  in  general.  It  is  no  doubt  in 
the  abstract,  the  form  of  testimony  least  deserving 
of  credit,  because  it  speaks  mainly  to  opinion  and  not 
to  facts,  and  is  almost  necessarily  inconclusive.  On 
some  subjects,  of  course,  positive  or  direct  testimony 
is  often  unattainable,  and  the  cause  of  justice  is 
then  much  indebted  to  a  witness  who  can  intelli- 
gently and  with  reason,  testify  to  his  belief  or  opin- 
ion, or  draw  inferences  from  similar  facts  within  his 

1  25  Journal  of  Jurisprudence,  409,  413,  414. 


468  EXPERT  TESTIMONY. 

own  experience.  But  a  judge  may  certainly  find 
justification  for  his  distrust  in  much  that  too  often 
accompanies  the  appearance  of  experts  in  an  action. 
They  have  done  not  a  little  of  late  towards  weaken- 
ing their  already  limited  value  as  witnesses.  That 
absolute  independence  which  we  have  seen  should 
be  the  very  foundation  of  their  worth  is  generally 
wanting.  If  they  are  men  of  any  eminence,  the 
tendency  at  least  of  their  opinions  is  already  known 
to  those  who  employ  them.  It  is,  indeed,  often  on 
such  tendency  that  their  eminence  depends.  Possi- 
bly, if  they  are  eminent,  and,  probably,  if  they  are 
not,  their  judgment  is  biased  towards  their  employ- 
ers, ita  prsscurrit  amicitia  judicium,  tollit  que  experi- 
endi  potestatem.  Men  readily  believe  what  they 
anxiously  desire,  and  such  witnesses  forget  their 
real  character,  and  seem  to  consider  themselves 
paid  agents.  The  result  may  be  seen  in  the  extra- 
ordinary consequences  which  arise  from  the  careful 
choice  by  suitable  agents  of  their  deliverers  of  opin- 
ions to  order.  It  is  not  an  unusual  circumstance  to 
find  them  in  the  continuous  employ  of  some  con- 
stantly litigant  body,  e.  g.,  a  gas  or  water  company. 
If  otherwise,  they  are  seldom  called  in  until  litiga- 
tion has  been  threatened  or  actually  commenced, 
instead  of  appearing  as  assistants  of  the  court  in 
determining  upon  what  is  most  for  the  public  good. 
The  wildest  theories  are  enunciated  ;  science  and 
health  are  insulted  in  the  interests  of  costs  and  per- 
sonal notoriety;  dust  is  purposely  thrown  in  those 
eyes  which  ask  for  light,  and  the  unavoidable  inex- 
perience of  the  court  is  compelled  to  a  decision, 
which  those  who  really  cause  it  know  to  be  wrong, 
or,  at  least,  do  not  think  to  be  right.  On  some 


MATTERS    OF    MEDICAL    SCIENCE.  469 

special  branches  of  inquiry  the  same  two  eminent 
experts,  whose  views  are  as  well  known  as  those  of 
two  rival  village  politicians,  confront  each  other 
daily.  And,  lastly,  although  their  evidence  is  given 
upon  oath,  the  sanction  of  this  need  presents  no 
terror  to  their  minds.  *  *  *  When  the  evidence 
is  only  as  to  a  matter  of  opinion,  the  witness,  of 
course,  cannot  be  indicted  for  perjury,  and  it  is  clear 
that  this  will  allow  the  assertion  of  anything  which 
a  skilled  witness  may  think  likely  to  advantage  the 
cause  of  his  employer,  or  add  importance  to  his 
theories  and  himself.  The  serious  mischief  caused 
in  this  way,  added  to  the  frequent  inability  of  the 
court  to  obtain  any  other  kind  of  evidence,  or  to 
arrive  at  a  conclusion  which  does  not  depend  mainly 
on  such  testimony,  naturally  produces  great  dissatis- 
faction with  any  decision  in  an  expert  action." 

§  203.  Cases  Holding  that  Expert  Testimony  in 
Matters  of  Medical  Science  is  of  Great  Value. — On 
the  other  hand  many  cases  may  be  found  in  which 
courts  have  expressed  the  opinion  that  the  testimony 
of  experts  in  medical  science  is  of  great  value,  or 
entitled  to  great  weight.  These  cases  must  now  be 
noticed. 

In  a  case  before  the  Supreme  Court  of  New  York 
in  1872,  the  court  was  called  upon  to  say  whether 
the  following  instruction  should  have  been  given  : 
"Considering  the  extraordinary  character  of  the 
injuries  alleged  in  this  case,  and  the  great  difficulty 
attendant  upon  their  proper  investigation,  great 
weight  should  be  given  by  the  jury  to  the  opinion 
of  scientific  witnesses,  accustomed  to  investigate  the 
causes  and  effects  of  injuries  to  the  eye,  and  a  dis- 

i  The  interesting  article  from  which  the  above  extract  is  made  is  written 
by  Mr.  G.  Brooke  Freeman,  Law  Mag.  &  Rev.,  Feb.,  1878. 


470  EXPERT   TESTIMONY. 

tinction  should  be  made  in  favor  of  the  opinion  of 
those  accustomed  to  use  the  most  perfect  instru- 
ments and  processes,  and  who  are  acquainted  with 
the  most  recent  discoveries  of  science  and  most 
improved  methods  of  treatment  and  investigation." 

In  this  case  the  plaintiff  had  called  a  physician, 
who  stated  on  cross-examination  that  in  his  exami- 
nation of  the  eyes  he  had  not  used  the  opthalmo- 
scope,  or  stereoscope,  and  did  not  make  a  specialty 
of  diseases  of  the  eye.  While  the  defendant  had 
called  a  physician  who  testified  that  he  had  made 
a  specialty  of  such  diseases,  that  he  had  used  op- 
thalmoscope  and  stereoscope.  The  court  decided 
that  the  trial  court  committed  an  error  in  not  giving 
the  above  requested  instruction,  saying:  "The  prop- 
position  there  laid  down  was  correct  and  should 
have  been  presented  to  the  jury."1 

In  a  case  before  the  Supreme  Court  of  Mississippi 
in  1870,  that  court  say:  "Prominent  among  the 
testimony  necessarily  made  use  of  at  this  stage  of 
investigation,  is  that  of  medical  and  scientific  per- 
sons, surgeons,  physicians  and  chemists,  by  whom 
the  body  or  its  remains  have  been  inspected  and 
examined,  either  at  the  time  of  the  discovery  or 
shortly  after.  The  testimony  of  these  witnesses,  as 
to  the  appearances  observed  on  such  examinations, 
is  always  of  the  greatest  value,  and  their  opinions 
as  to  the  causes  of  such  appearances  are  entitled  to 
much  consideration." 

In  a  case  in  the  Supreme  Court  of  North  Carolina 
in  1879,  that  court  sustained  an  instruction  reading 
as  follows:  "The  law  likewise  attaches  peculiar 

1  Tinney  v.  New  Jersey  Steam-boat  Co.,  12  Abbott's  Pr.  (N.  S.)  1. 
J  Pitts  v.  State,,  43  Miss.  472,  480. 


MATTERS    OF    MEDICAL   SCIENCE.  471 

importance  to  the  opinion  of  medical  men  who  have 
the  opportunity  of  observation  upon  a  question  of 
mental  capacity,  as  by  study  and  experience  in  the 
practice  of  their  profession  they  become  experts  in 
the  matter  of  bodily  and  mental  ailments."  The 
court  in  sustaining  this  instruction  say:  "Nor  do 
we  consider  the  criticism  upon  the  language  of  the 
judge  as  invading  the  province  of  the  jury  well 
founded.  Mere  opinions  predicated  upon  the  testi- 
mony of  others,  when  they  proceed  from  those  who 
have  special  skill  and  experience  in  a  profession  or 
employment,  are  competent  and  proper  to  be  heard 
by  the  jury,  and  are  often  valuable  aids  in  conduct- 
ing them  to  a  correct  conclusion.  There  are,  how- 
ever, hypothetical  opinions  only,  dependent  upon 
the  fullness  and  accuracy  of  the  facts  to  which  they 
apply  for  their  value,  and  it  is  to  this  kind  of  evi- 
dence that  the  disparaging  remarks  quoted  by  the 
defendant's  counsel  from  certain  law  writers  are 
mainly  directed.  But  the  opinion  of  a  well  in- 
structed and  experienced  medical  man  upon  a  matter 
within  the  scope  of  his  profession,  and  based  on 
personal  observation  and  knowledge,  is  and  ought 
to  be  carefully  considered  and  weighed  by  the  jury 
in  rendering  their  verdict;  and  this  substantially  is 
the  comment  of  the  court.  *  *  *  It  cannot 
admit  of  question  that  the  opinion  of  the  medical 
expert  who  attended  the  deceased  during  his  last 
fatal  illness,  and  must  have  become  familiar  with 
his  disease  and  its  effects  upon  both  body  and  mind, 
should  have  greater  weight  and  possess  a  higher  value 
in  determining  his  mental  as  well  as  physical  condi- 
tion than  the  opinion  of  an  unprofessional  man. 
As  this  is  the  dictate  of  common  reason,  it  was  not 


472  EXPERT   TESTIMONY. 

improper  in  the  judge  to  say  so.  The  charge  mani- 
festly refers  to  the  opinion  itself  as  evidence  in  the 
cause,  and  not  to  the  credibility  of  the  witness  who 
gives  the  opinion.  The  credit  due  to  the  witness 
belongs  to  the  jury  to  determine  and  with  them  it 
is  left."1 

In  a  case  in  the  Supreme  Court  of  Pennsylvania  in 
1878,  where  the  question  in  the  court  below  was  as  to 
the  insanity  of  the  prisoner,  the  trial  court  had  told 
the  jury  that  it  doubted  "very  much  whether  you  will 
realize  much,  if  any,  valuable  aid  from  them  (the 
medical  experts)  in  coming  to  a  correct  conclusion 
as  regards  the  responsibility  for  crime  by  this  pris- 
oner," and  this  was  held  to  be  error.  And  the 
court  say:  "It  is  well  settled  that  the  knowledge  and 
experience  of  medical  experts  is  of  great  value  in 
questions  of  insanity.  They  are  like  those  of  ex- 
perts in  all  other  branches  of  science  and  of  art. 
Evidence  had  been  given  of  the  observation,  expe- 
rience and  skill  of  these  medical  experts,  sufficient 
to  enable  them  to  form  intelligent  opinions,  and  they 
had  testified  to  those  opinions.  We  cannot  under- 
stand on  what  principle  the  learned  judge  said  to 
the  jury  that  in  this  case  he  questioned  very  much 
whether  they  would  realize  much,  if  any,  valuable 
aid  from  the  testimony.  True,  the  jury  were  not 
bound  to  adopt  the  conclusions  of  the  experts;  yet 
they  should  have  been  instructed  to  give  a  careful 
consideration  to  the  testimony  of  those  who  had 
made  the  diseases  of  the  human  mind  a  special  study. 
In  a  former  part  of  the  charge  the  jury  was  told  that 
'great  respect  should  be  paid  to  the  opinion  of  that 
class  of  witnesses, '  followed  by  other  remarks  equally 

1F\ynt  v.  Bodenharaer,  SON.  C.  205. 


MATTEES    OP    MEDICAL    SCIENCE.  473 

correct.  Yet,  when  the  court  came  to  apply  the 
testimony  to  the  case  trying,  its  effect  was  almost 
destroyed.  We  see  no  especial  circumstances  in  this 
case  to  justify  taking  from  the  evidence  of  these 
medical  witnesses  that  consideration  to  which  the 
testimony  of  experts  is  generally  entitled."1 

The  Supreme  Court  of  West  Virginia  makes  the 
following  statement:  "The  evidence  of  witnesses 
present  at  the  execution  of  the  deed  are  en- 
titled to  peculiar  weight.  The  evidence  of  phy- 
sicians, especially  those  who  attended  the  grantor, 
and  were  with  him  considerably  during  the 
time  it  is  charged  he  was  of  unsound  mind,  is 
entitled  to  great  weight;  next  to  physicians  and 
those  who  were  present,  either  as  attesting  wit- 
nesses or  otherwise,  at  the  time  the  deed  was  ex- 
ecuted, are  those  whose  intimacy  in  the  family  has 
given  them  an  opportunity  of  seeing  the  party  at  all 
times,  and  watching  the  operations  of  his  mind.  Of 
course,  it  is  understood  that  in  the  weight  to  be  given 
to  the  testimony  of  the  different  classes  of  witnesses 
we  have  here  enumerated,  that  the  witnesses  them- 
selves have  no  discredit  cast  upon  them,  either  in 
cross-examination,  the  circumstance  they  detail  or 
in  any  other  way.  But  the  mere  opinions  of  wit- 
nesses not  experts  are  entitled  to  little  or  no  regard, 
unless  they  are  supported  by  good  reasons,  founded 
on  facts  which  warrant  them;  and  if  the  reasons  and 
facts  upon  which  they  are  founded  are  frivolous,  the 
opinions  of  such  witnesses  are  worth  but  little  or 
nothing.1 

And  the  Court  of  Appeals  of  Virginia  have  said: 

1  Parnell  v.  Commonwealth.  86  Pa.  St.  260,  269. 

8  Jarrett  v.  Jarrett,  11  W.  Va.  584,  626.    And  see  Kerr  v.  Lunsford,  31 
W.  Va.  659,  681;  Nicholas  v.  Kershner,  20  W.  Va.  251,  255. 


474  EXPERT    TESTIMONY. 

"The  opinion  of  a  witness  as  to  the  sanity  of  a  per- 
son, depends  for  its  weight  on  the  capacity  of  the 
witness  to  judge,  and  his  opportunity.  Physicians 
are  considered  as  occupying  a  high  grade  on  such 
questions,  both  because  they  are  generally  men  of 
cultivated  minds  and  observation,  and  because,  from 
their  education  and  pursuits,  they  are  supposed  to 
have  turned  their  attention  more  particularly  to  such 
subjects,  and  therefore  to  be  able  to  discriminate 
more  accurately,  especially  a  physician  who  has  at- 
tended the  patient  through  the  disease  which  is  sup- 
posed to  have  disabled  his  mind."1  In  a  subsequent 
case  in  the  same  court  this  doctrine  is  approved.2 

In  the  Supreme  Court  of  Texas,  where  the  ques- 
tion was  as  to  the  sanity  of  the  accused,  the  court 
said:  "The  opinions  of  medical  men  are  received 
with  great  respect  and  consideration,  and  properly 


so.' 


In  a  case  in  Delaware  in  1851,  the  jury  were 
instructed  as  follows:  "The  opinions  of  wit- 
nesses, who  have  long  been  conversant  with  in- 
sanity in  its  various  forms,  and  who  have  had 
the  care  and  superintendence  of  insane  persons, 
are  received  as  competent  evidence,  even  though 
they  have  not  had  opportunity  to  examine  the  par- 
ticular patient,  and  observe  the  symptoms  and  in- 
dications of  disease  at  the  time  of  its  supposed  ex- 
istence. *  *  *  Such  opinions,  when  they  come 
from  persons  of  great  experience,  and  in  whose  cor- 
rectness and  sobriety  of  judgment  just  confidence 
can  be  had,  are  of  great  weight,  and  deserve  the 
respectful  consideration  of  a  jury.  But  the  opinion 

1  Burton  v.  Scott,  3  Rand.  (Va.)  399,  403. 

a  Cheatham  v.  Hatcher,  30  Gratt.  (Va.)  56,  65. 

3  Thomas  v.  State,  40  Tex.  61,  65. 


MATTERS    OF    MEDICAL    SCIENCE.  475 

of  a  medical  man  of  small  experience,  or  of  one  who 
has  crude  and  visionary  notions,  or  who  has  some 
favorite  theory  to  support,  is  entitled  to  very  little 
consideration.  The  value  of  such  testimony  will 
depend  mainly  upon  the  experience,  fidelity  and 
impartiality  of  the  witness  who  gives  it." 

In  a  case  in  Georgia  the  trial  court  charged  as  fol- 
lows: "Though  great  respect  is  due  the  opinions  of 
gentlemen  of  the  faculty,  skilled  in  such  matters  by 
reason  of  their  superior  skill  and  advantage  for  un- 
derstanding the  operations  and  the  phenomena  of 
the  human  mind,  yet  it  is  at  last  from  the  facts 
proven  that  a  jury  are  mainly  to  decide.  They  are 
not  bound  by  any  opinion,  unless  that  opinion  is 
sustained  by  the  facts  proven."  No  objection  seems 
to  have  been  taken  to  the  charge,  and  in  the  court 
above  the  medical  testimony  was  thus  referred  to: 
"As  it  respects  this  species  of  testimony  generally, 
the  doctrine  is  this:  It  is  competent  testimony;  and 
when  the  experience,  honesty  and  impartiality  of 
the  witnesses  are  undeniable,  as  in  this  case,  the  tes- 
timony is  entitled  to  great  weight  and  considera- 
tion."2 

In  a  case  coming  before  the  Supreme  Court  of 
Arkansas  in  1860,  that  court's  attention  was  called 
to  an  instruction  reading  as  follows:  "That  the  opin- 
ion of  practicing  physicians  is  good  evidence  on  the 
points  pertaining  to  their  profession,  and  as  such 
they  will  consider  the  opinions  given  by  the  physi- 
cians in  this  case."  The  Supreme  Court  in  passing 
on  this  instruction  said  it  did  not  know  what  the 
court  meant  the  jury  to  understand  by  the  above, 


1  State  v.  Windsor,  5  Harr.  512,  542. 

2  Choice  v.  The  State,  31  Ga.  424,  481. 


476  EXPERT    TESTIMONY. 

and  that  it  should  be  inclined  to  think  that  the  jury 
might  have  been  misled  by  it  were  it  not  for  the  fact 
that  they  were  also  informed  that  it  was  their  prov- 
ince to  give  to  the  testimony  of  the  physicians  such 
weight  as  they  thought  it  entitled  to.  The  Supreme 
Court  said  farther  that  the  weight  to  be  attached  to 
the  opinions  of  the  physicians  (as  to  the  physical 
condition  of  a  slave)  ''would  depend  upon  their 
skill,  experience,  the  examination  which  they  gave 
the  patient,  their  opportunity  for  observing  the 
symptoms  and  effects  of  the  disease,  their  mental 
capacity,  etc.,  etc.  In  many  cases  the  opinions  of 
professional  men  are  entitled  to  great  consideration 
and  respect;  in  others  but  little." 

§  204.  Cases  Denying  that  the  Testimony  of  Physi- 
cians as  to  Mental  Condition  is  Entitled  to  Greater 
Weight  than  that  of  Ordinary  Witnesses. — We  have 
seen  in  the  preceding  section 2  that  courts  have  as- 
serted that  the  opinions  of  physicians  on  questions 
of  mental  capacity  are  entitled  to  greater  weight 
than  those  of  ordinary  witnesses. 

An  examination  of  those  cases,  however,  shows 
that  the  opinions  of  medical  men  are  considered  en- 
titled to  greater  weight  than  the  opinions  of  non- 
professional  persons,  provided  the  physicians  have 
had  personal  observation  and  knowledge  of  the  per- 
son whose  capacity  is  the  matter  in  issue.  The  cases 
which  follow  show  that  if  the  medical  men  have  not 
had  such  personal  observation  and  knowledge  of 
the  individual,  their  testimony  has  not  been  consid- 
ered as  entitled  to  greater  weight  than  is  the  testi- 
mony of  ordinary  witnesses  who  have  personally 
observed  and  known  the  individual  in  question. 

1  Tatum  v.  Mohr,  21  Ark.  349,  354. 

2  See  pp.  471-475. 


MENTAL    CONDITION.  477 

The  Supreme  Court  of  Indiana  was  called  upon 
in  1884  to  consider  this  matter,  and  it  said:  "It 
would  have  been  error  for  the  court  to  tell  the  jury 
that  the  expert  witnesses,  speaking  merely  as  to  mat- 
ters of  opinion,  and  basing  their  opinions  on  hypo- 
thetical questions,  were  entitled  to  more  credit  than 
witnesses  who  had  knowledge  of  facts  gathered  from 
personal  observation,  and  who  based  their  opinions 
on  actual  facts  and  not  supposed  cases.  As  both 
kinds  of  evidence  are  competent,  the  jury  are  charged 
with  the  duty  of  determining  the  weight  and  effect 
of  the  evidence  in  each  particular  case,  and  the  court 
has  no  right  to  charge  them  to  give  preference  to  the 
one  class  or  the  other."1 

So  the  Supreme  Court  of  Illinois  say  upon  the 
same  subject:  "The  court  charged  the  jury,  in  sub- 
stance, that,  all  other  things  being  equal,  they  should 
give  greater  weight  to  the  opinions  of  physicians, 
on  the  subject  of  the  testamentary  capacity  of  the  tes- 
tatrix than  to  other  witnesses.  This  position  is  not 
sustained  by  authority  or  reason.  Physicians  may 
be  regarded  experts  as  to  the  condition  of  the  body, 
and  as  to  what  diseases  tend  to  impair  the  mind, 
but  it  does  not  follow,  from  the  mere  fact  that  they 
are  physicians,  that  they  are  any  better  judges  of 
the  degree  of  mental  capacity  than  other  men  of 
good  common  sense."  The  same  court  in  a  previous 
case  said:  "These  doctors  were  summoned  by  the 
contestants  as  'experts, '  for  the  purpose  of  invalidat- 
ing a  will  deliberately  made  by  a  man  quite  as  com- 
petent as  either  of  them  to  do  such  an  act;  they  were 
the  contestants'  witnesses  and  so  considered  them- 
selves, Dr.  Bassett  especially,  whose  sole  testimony 

1  Goodwin  v.  The  State,  96  Ind.  550,  561. 

2  Carpenter  v.  Calvert,  83111.  62,  70. 


478  EXPERT   TESTIMONY. 

is  pregnant  with  such  indications.  The  testimony 
of  such  is  worth  but  little,  and  should  always  be 
received  by  juries  and  courts  with  great  caution.  It 
was  said  by  a  distinguished  judge,  in  a  case  before 
him,  if  there  was  any  kind  of  testimony  not  only  of 
no  value,  but  even  worse  than  that,  it  w-as,  in  his 
judgment,  that  of  medical  experts.  They  may  be 
able  to  state  the  diagnosis  of  the  disease  more  learn- 
edly, but,  upon  the  question,  whether  it  had  at  a 
given  time  reached  such  a  stage  that  the  subject  of 
it  was  incapable  of  making  a  contract,  or  irresponsi- 
ble for  his  acts,  the  opinions  of  his  neighbors,  if  men 
of  good  common  sense,  would  be  worth  more  than 
that  of  all  the  experts  in  the  country.  *  *  *  It 
must  be  apparent  to  every  one,  but  few  wills  could 
stand  the  test  of  the  fanciful  theories  of  dogmatic 
witnesses,  who  bring  discredit  on  science  and  make 
the  name  of  'expert'  a  by-word  and  a  reproach.  We 
concur  with  the  judge  above  referred  to;  we  would 
not  give  the  testimony  of  these  common  sense  wit- 
nesses, deposing  to  what  they  know  and  saw  almost 
every  day  for  years,  for  that  of  so-called  experts,  who 
always  have  some  favorite  theory  to  support — men 
often  as  presumptuous  as  they  are  ignorant  of  the 
principles  of  medical  science." 

In  a  case  in  the  Supreme  Court  of  Michigan  Mr. 
Justice  CHRISTIANCY  said:  "We  consider  it  too  well 
settled  to  require  the  citation  of  authorities,  that 
upon  questions  of  this  kind  the  opinions  of  men 
skilled  in  that  particular  science — in  other  words, 
physicians  are  admitted  in  evidence,  though  not 
founded  upon  their  own  personal  observation  of  the 
facts  of  the  particular  case.  But  if  the  question 

1  Rutherford  v.  Morris,  77  111.  397,  404. 


MENTAL    CONDITION.  479 

had  not  already  been  closed  by  authority,  I  should 
be  much  inclined  to  doubt  the  propriety  of  receiv- 
ing the  opinions  of  merely  medical  witnesses,  under 
such  circumstances,  to  anything  more  than  physical 
facts,  such  as  the  physical  effects  of  the  disease,  as 
I  think  it  may  well  be  doubted  whether  the  skill  of 
ordinary  physicians  in  metaphysics,  or  their  judg- 
ment upon  merely  mental  manifestations  has  been 
shown  by  experience  to  be  of  any  greater  value  than 
that  of  intelligent  men  in  other  departments  of  life. 
The  question,  however,  seems  to  be  settled  in  their 
favor  upon  authority."  In  an  earlier  case  in  the 
same  court  Mr.  Justice  CAMPBELL  said:  "And  in  re- 
gard to  the  kind  of  weakness  alleged  to  have  existed 
in  the  case  of  Mr.  Beaubien  (senile  dementia), 
there  has  been  a  very  general  feeling  that  very  little 
aid  can  be  had  from  strictly  scientific  witnesses,  be- 
yond that  furnished  by  ordinary  experience." 

In  a  case,  in  the  Circuit  Court  of  the  United 
States  in  1815,  in  which  mental  derangement  was 
involved,  Mr.  Justice  WASHINGTON  charged  the  jury 
as  follows:  "Whether  the  grantor  in  this  case  was 
affected  in  one  way  or  the  other  may  well  be 
doubted.  If  the  physician  who  saw  him,  and  who 
has  given  testimony  respecting  the  situation,  had 
had  an  opportunity  to  examine  his  case  and  to  form  a 
deliberate  opinion  upon  it,  that  opinion,  pronounced 
by  a  man  of  his  acknowledged  professional  talents, 
would  have  been  almost  conclusive  upon  this  point. 
But  he  saw  him  once  only,  and  then  for  a  very  short 
time;  there  was  little  or  no  conversation  between 
them;  and  this  witness  gave  it  as  his  opinion  that 
he  was  incapable  of  conversing.  In  weigh- 

1  Kempsey  v.  McGinniss,  21  Mich.  123,  137. 

2  Beaubien  v.  Cicotte,  12  Mich,  459,  502  (1864). 


480  EXPERT   TESTIMONY. 

ing  the  contradictory  evidence  upon  which  they 
have  to  decide,  that  which  contains  facts  upon  which 
they  may  judge  for  themselves  and  are  given  by 
witnesses,  who  by  frequently  seeing  and  conversing 
with  the  grantor  had  a  full  opportunity  of  forming 
a  judgment  as  to  his  state  of  mind,  ought  to  prevail 
with  the  jury,  over  general  opinions  upon  the  same 
subject  formed  by  persons  who  had  fewer  opportuni- 
ties of  judging." 

§  305.  The  Testimony  of  a  Family  Physician  as 
to  Mental  Condition — Weight  Accorded  to. — In  some 
cases  the  courts  have  declared  that  the  testimony 
of  a  family  physician  who  attended  the  person  whose 
condition  is  in  issue  is  entitled  to  greater  weight 
than  is  the  testimony  of  other  physicians  who  have 
not  had  as  good  opportunities  for  making  themselves 
acquainted  with  such  person's  actual  condition. 

Thus,  the  Massachusetts  court  say:  "Supposing 
the  question  was  as  to  the  gradual  decay  of  the 
faculties  of  the  testator  from  disease  or  old  age,  one 
cannot  but  see  that  the  opinion  of  an  intelligent 
family  physician,  familiar  with  his  patient's  infirmi- 
ties, and  watching  them  at  every  stage  of  their  pro- 
gress, would  and  should  have  far  greater  weight 
with  a  jury  than  that  of  any  number  of  physicians 
who  had  made  insanity  a  special  study,  but  who 
were  called  to  give  an  opinion  upon  what  is  always, 
and  necessarily,  an  imperfect  statement  of  the  facts 
and  symptoms.  Or,  if  the  case  were  one  of  an  original 
defective  capacity,  the  judgment  and  opinion  of  the 
old  family  physician  would  be  worth  more  than  that 
of  the  masters  of  the  science  of  insanity,  who  can 
have  but  a  fragment  of  his  history." 

1  Lessee  of  Hoge  v.  Fisher,  1  Peters  C.  C.  163. 

2  Baxter  v.  Abbott,  7  Gray,  71,  79  (1856). 


DIFFERENT    THEORIES    DISCUSSED.  481 

And  in  other  cases  it  is  asserted  that  the  evi- 
dence of  attending  physicians  is  entitled  to  great 
weight.1  But  while  it  is  proper  to  instruct  the  jury 
as  above,  yet  it  has  been  held  error  to  tell  them  that 
the  evidence  of  the  attending  physician  is,  in  the 
particular  case,  entitled  to  great  weight.  Thus,  in 
a  case  in  West  Virginia,  the  trial  court  was  asked  to 
instruct  the  jury  that,  '  'in  considering  the  testimony, 
the  evidence  of  Dr.  W.  J.  Bates,  Jr.,  the  physician 
who  attended  the  testator  and  was  his  family  physi- 
cian, is  entitled  to  great  weight."  The  Court  of 
Appeals  held  that  the  instruction  was  properly  re- 
fused. That  court  said:  "This  instruction  was 
properly  refused.  It  was  in  effect  asking  the  court 
to  tell  the  jury  that  Dr.  Bates'  evidence  was  entitled 
to  great  weight.  The  court  had  already,  at  the  in- 
stance of  the  contestants,  instructed  the  jury  cor- 
rectly— and  it  was  as  far  in  that  line  as  it  was  proper 
to  go — 'that  the  evidence  of  physicians,  especially 
those  who  attended  the  testator  and  were  with  him 
during  the  time  it  is  charged  he  was  of  unsound 
mind,  is  entitled  to  great  weight.' 

§  206.  The  Different  Theories  Discussed. — An 
examination  of  the  cases  referred  to  in  the  preceding 
sections  shows  an  apparently  confused  state  of  the 
law  on  the  subject  under  consideration.  It  appears 
that  in  different  cases  different  instructions  have 
been  given,  which  are  seemingly  irreconcilable. 
These  theories  are  as  follows: 

1 .  That  expert  testimony  is  to  be  considered  like 
any  other  testimony  in  the  case  and  tried  by  the 
same  tests. 

Barrett  v.  Jarrett,  11   W.  Va.  584;  Beverley  v.  Walden,  20  Gratt. 
(Va.)  147,  158.  159. 

(31) 


482  EXPERT    TESTIMONY. 

2.  That  expert  testimony  is  to  be  received  with 
caution. 

3.  That   expert   testimony   is    entitled    to   little 
weight. 

4.  That   expert   testimony    is    entitled  to   great 
weight. 

The  first  of  these  theories,  in  the  order  above 
named,  is  in  a  certain  sense  true,  but  in  the  terms  in 
which  it  is  laid  down  is  liable  to  be  misleading.  Expert 
testimony  may  relate  to  facts  or  to  matter  of  opinion. 
If  it  consists  of  testimony  as  to  facts  it  would  seem 
to  be  entitled  to  the  same  credit,  and  should  be  tried 
by  the  same  tests  as  are  applied  to  the  testimony  of 
ordinary  witnesses  testifying  concerning  matters  of 
fact.  If  it  consists  of  testimony  as  to  matter  of  opin- 
ion, it  is  still  true  that  it  is  entitled  to  the  same 
credit  and  is  to  be  tried  by  the  same  tests  applied  to 
the  testimony  of  ordinary  witnesses  testifying  con- 
cerning matter  of  opinion.  But  what  are  the 
tests  applicable  to  the  testimony  of  ordinary 
witnesses  testifying  to  matter  of  opinion  ?  There 
can  be  no  doubt  that  where  testimony  relates  to 
matter  of  opinion,  it  is  to  be  received  with  caution, 
whether  it  comes  from  an  expert  or  a  non-expert. 
A  witness  testifying  to  matter  of  opinion  is  more 
liable  to  be  mistaken  than  is  a  witness  who  testifies 
to  facts,  to  a  matter  of  knowledge.  It  would  seem 
proper,  therefore,  in  those  cases  where  expert 
testimony  relates  to  matters  of  opinion,  for  the 
court,  after  instructing  the  jury  that  expert  testi- 
mony is  to  be  considered  like  any  other  testimony 
and  tried  by  the  same  tests,  to  further  instruct 
them  that,  where  such  testimony  relates  to  matter  of 
opinion,  it  is  like  any  other  testimony  relating  to 


IUKKKRKNT    THKORIKS    I)IS(  TSSKI ».  183 

opinion  to  be  received  with  caution.  Jt  semis  to  the 
writer  to  be  a  mistake  to  assume,  as  has  been  done  in 
one  case,1  that  an  instruction  that  expert  testimony 
is  to  be  received  with  caution  is  equivalent  to  an  in- 
struction that  such  testimony  is  entitled  to  little 
weight,  or  is  of  small  value.  While  it  is  to  be  re- 
ceived with  caution  it  may  be  entitled  to  great  value. 
The  jury  are  to  consider  with  caution  in  such  cases 
the  character  of  the  witnesses,  the  extent  of  their 
knowledge,  skill  and  experience,  their  freedom  from 
bias,  their  opportunities  for  observation,  their  lia- 
bilities to  mistake,  and  having  considered  all  these 
matters  with  care  they  are  entitled  to  give  great 
weight  to  the  testimony,  if  in  their  opinion  the 
conditions  are  such  as  to  justify  it. 

No  general  rule  can  be  laid  down  to  the  effect 
that  expert  testimony  is  of  great  value,  or  that  it  is  of 
little  value.  In  some  cases  such  testimony  is  of 
great  value,  in  others  it  is  entitled  to  little  value. 
while  in  some  cases  it  seems  to  be  absolutely  value- 
less. The  value  of  expert  testimony  depends  on  a 
variety  of  circumstances,  which  it  is  the  duty  of  the 
jury  to  consider. 

1.  They   should   consider  the  character  of  the 
witness  for  integrity,  and  freedom  from  bias. 

2.  They  should  consider  the  extent  of  his  knowl- 
edge, his  opportunities  for  observation,  his  skill  and 
experience. 

3.  They   should    consider,    if  his    testimony    is 
based  on  a  hypothetical  question,  whether  the  fact- 
which  the   question  assumes  to  be  true,  and  upon 
which  the  opinion  of  the   expert  is  based,  have  all 
been  proven  in  the  evidence  adduced. 

J  Atchison.  etc.  R.  K.  Co.  v.  Thul.  32  Kan.  ->'^>. 


484  EXPERT    TESTIMONY. 

4.  They  should  consider  whether  the  testimony 
of  the  expert  relates  to  matters  of  scientific  knowl- 
edge, or  to  opinions  which  are  speculative  and  theo- 
retical in  their  nature.  If  the  witness  testifies  to 
the  facts  of  science,  to  matters  of  absolute  knowl- 
edge, or  to  the  necessary  and  invariable  results  fol- 
lowing from  facts  stated,  his  testimony  may  be 
entitled  to  great  weight  if  the  jury  are  satisfied  as 
to  his  knowledge,  integrity  and  skill.  But  if  he 
testifies  to  matter  of  opinion  simply,  to  that  which 
is  matter  of  probable  inference  to  speculative  and 
theoretical  opinions,  his  testimony  is  certainly  not 
of  equal  value,  and  may  be  entitled  to  but  little 
weight. 

A  most  excellent  statement  of  the  proper  view  to 
take  of  expert  testimony  is  to  be  found  in  a  case  in 
the  Circuit  Court  of  the  United  States,  where  the 
jury  were  charged  as  follows:  "The  value,  how- 
ever, of  the  opinion  of  experts  differs  largely  in 
degree  in  different  cases.  It  is  of  first  importance 
that  the  facts  upon  which  they  are  founded  be  satis- 
factorily established.  In  the  present  case  it  does 
not  occur  to  us  that  there  was  any  dispute  as  to  the 
facts  in  relation  to  which  the  expert  spoke.  It  is, 
next  of  importance,  that  the  integrity  and  skill  of 
the  witness  be  known.  I  may  add  here,  that  no 
question  is  made  of  the  competency  of  the  witness 
who  has  testified  here,  or  of  the  confidence  due  to 
his  integrity.  But  this  is  not  all.  Where  the  expert 
states  precise  facts  in  science,  as  ascertained  and 
settled,  or  states  the  necessary  and  invariable  con- 
clusion which  results  from  the  facts  stated,  his  opin- 
ion is  entitled  to  great  weight.  Where  he  gives 
only  the  probable  inference  from  the  facts  stated, 


DIFFERENT    THEORIES    DISCUSSED.  485 

his  opinion  is  of  less  importance,  because  it  states 
only  a  probability.  When  the  opinion  is  specula- 
tive, theoretical,  and  states  only  the  belief  of  the 
witness,  while  yet  some  other  opinion  is  consistent 
with  the  facts  stated,  it  is  entitled  to  but  little 
weight  in  the  minds  of  the  jury. 

Testimony  of  experts  of  this  latter  description, 
and  especially  where  the  speculative  and  theoretical 
character  of  the  testimony  is  illustrated  by  opinions 
of  experts  on  both  sides  of  the  question,  is  justly 
the  subject  of  remark,  and  has  often  been  condemned 
by  judges  as  of  slight  value.  Like  observations 
apply,  in  a  greater  or  less  degree,  to  the  opinions  of 
witnesses  who  are  employed  for  a  purpose,  and  paid 
for  their  services,  who  are  brought  to  testify  as  wit- 
nesses for  their  employers.  This  last  observation 
has  no  pertinency  to  the  present  case,  and  is  only 
made  for  the  purpose  of  explaining  the  reason  why 
testimony  of  this  sort  has  been  the  subject  some- 
times of  such  comments  as  have  been  made  in  your 
hearing.  This  condemnation  is  not  always  appli- 
cable. Often  it  would  be  unjust.  Where  an  expert 
of  integrity  and  skill  states  conclusions  which  are 
the  necessary,  or  even  the  usual  results  of  the  facts 
upon  which  his  opinion  is  based,  the  evidence  should 
not  be  lightly  esteemed  or  hastily  discredited.  But, 
after  all,  the  question  of  fact  in  issue  is  not  for  the 
expert  to  decide.  The  question  of  fact  in  this  case  is 
neither  for  the  expert  nor  for  the  court.  It  is  for  you 
to  decide,  upon  your  soundjudgmcnt.  under  the  oaths 
which  you  have  taken,  to  render  a  verdict  according 
to  the  whole  of  the  evidence  submitted  to  you  for 
consideration." 

i  Gav  v.  Union  Mutual  Life  Ins.  Co..  !»Blatch.  14'2.  154  (1S71  I. 


48G  EXPERT  TESTIMONY. 

§  207.  The  Right  and  Duty  of  the  Jury  as  to 
Expert  Testimony. — There  are  certain  principles  in 
regard  to  the  consideration  of  expert  testimony  that 
should  be  observed: 

1 .  The  ultimate  weight  to  be  accorded  to  the  tes- 
timony of  the  experts  is  a  question  to  be  determined 
by  the  jury.1 

2.  There  is  no  rule  of  law  which  requires  the 
jury  to   surrender  their  judgment  implicitly  to  the 
experts,  and   to  give  a   controlling  influence  to  the 
opinions  of  the  scientific  witnesses.2 

The  jury  cannot  be  required,  as  a  matter  of  law,  to 
accept  the  conclusions  of  the  expert  witnesses.3 
Their  testimony  is  given  for  the  purpose  of  en- 
lightening the  jury,  and  not  for  the  purpose  of 
controlling  their  judgment.4  Upon  the  jury  rests 
the  responsibility  of  rendering  a  correct  verdict,  and 
if  the  testimony  of  the  experts  is  opposed  to  the 
jury's  convictions  of  truth  it  is  their  duty  to  dis- 
regard it.5  In  the  case  last  cited  will  be  found  an 

1  See  §  32,  as  well  as  oases  cited  in  the  next  note. 

2Brehm  v.  Great  Western  R.  R.  Co.,  34  Barb.  256,  272;  Williams  v. 
The  State,  50  Ark,  511,  520;  U.  S.  v.  Molloy,  31  Fed.  Rep.  19;  Chandler 
v.  Barrett,  21  La.  Ann.  58,62;  Humphries  v.  Johnson,  20  Ind.  190; 
Goodwin  v.  State,  96  Ind.  550,  561 ;  McAllister  v.  State,  17  Ala.  434,  438. 

3  Anthony  v.  Stimson,  4  Kan.  221. 

*  Fletcher  v.  Seekel,  1  R.  I.  267;  Choice  v.  State,  31  Ga.  424,  481. 

5  United  States  v.  McGlue,  1  Curtis  C.  C.  1,  9.  Mr.  Justice  Curtis 
charged  as  follows :  "We  take  the  opinions  of  physicians  in  this  case  for 
the  same  reason  we  resort  to  them  in  our  own  cases  out  of  court,  because 
they  are  believed  to  be  better  able  to  form  a  correct  opinion  upon  a 
subject  within  the  scope  of  their  studies  and  practice  than  men  in  gen- 
eral, and,  therefore,  better  than  those  who  compose  your  panel.  But 
these  opinions,  though  proper  for  your  respectful  consideration,  and 
entitled  to  have  in  your  hands  all  that  weight  which  reasonably  and 
justly  belong  to  them,  are  nevertheless  not  binding  on  you,  against  your 
own  judgment,  but  should  be  weighed,  and  especially  when  they  differ, 
compared  by  you,  and  such  effect  allowed  to  them  as  you  think  right; 
not  forgetting,  that  on  you  alone  rests  the  responsibility  of  a  correct 
verdict." 


RIGHT    AND    DUTY    OF   JURY.  487 

excellent  charge  to  a  jury,  which  we  have  embodied 
in  the  note. 

3.  It    is    error    to    instruct    a    jury  that   they 
may  wholly  disregard  the  testimony  given  by  the 
experts,  and  make  their  finding  from  their  own  ob- 
servation.1 

The  testimony  being  in  cannot  be  disregarded  by 
them,  but  must  be  considered.  After  considering 
it  they  are  at  liberty,  of  course,  to  reject  it,  if  in 
their  opinion  it  is  unreasonable.  And  it  is  not  error 
to  charge  them  that  they  may  disregard  the  testi- 
mony if  they  deem  it  unreasonable.2 

4.  It  is  proper,  however,  to  charge  the  jury  that 
in  considering  the  evidence  and  the  weight  to  be 
accorded  to  it,  they  may  bring  to  its  consideration 
such    general    practical  knowledge    as    they    may 
possess  upon  the  subject.3 

Thus,  in  a  case  in  the  Supreme  Court  of  the 
United  States,  it  was  held  that  the  following  instruc- 
tion was  erroneous,  in  an  action  brought  to  recover 
for  professional  services  as  attorneys  at  law:  ''You 
must  determine  the  value  of  the  services  rendered 
from  the  evidence  that  has  been  offered  before  you, 
and  not  from  your  own  knowledge  and  ideas  as  to 
the  value  of  such  services."  The  opinion  of  the 
court  was  delivered  by  Mr.  Justice  FIELD,  in  the 
course  of  which  he  says:  "It  was  the  province  of 
the  jury  to  weigh  the  testimony  of  the  attorneys  as 

1  Hill  v.  City  of  Kansas,  80  Mo.  523;  Washburn  v.  The  Railroad,  57 
Wis.  364. 

2  City  of  St.  Louis  v.  Ranken,  95  Mo.  189. 

3  Forsyth  v.  Doolittle,  120  U.  S.  73,  77;  Latiin  v.  Chicago,  etc.  R.  R. 
Co.,  33  Fed.  Rep.  415;  Leitensdorfer  v.  King,  7  Col.  436;  City  of  Kan- 
sas v.  Butterfield,  89  Mo.  648;  City  of  St.  Louis  v.  Rauken,  95  Mo.  192; 
Patterson  v.  Boston,  20  Pick.  (Mass.)  158,  166;  Ottawa  Gas,  etc.  Co.  v. 
Graham,  28  111.  73. 


488  EXPERT   TESTIMONY. 

to  the  value  of  the  services,  by  reference  to  their 
nature,  the  time  occupied  in  their  performance  and 
other  attending  circumstances,  and  by  applying  to 
it  their  own  experience  and  knowledge  of  the  char- 
acter of  such  services.  To  direct  them  to  find  the 
value  of  the  services  from  the  testimony  of  the 
experts  alone,  was  to  say  to  them  that  the  issue 
should  be  determined  by  the  opinions  of  the  attor- 
neys, and  not  by  the  exercise  of  their  own  judgment 
of  the  facts  on  which  those  opinions  were  given. 
The  evidence  of  experts  as  to  the  value  of  profes- 
sional services  does  not  differ  in  principle  from 
such  evidence  as  to  the  value  of  labor  in  other  de- 
partments of  business,  or  as  to  the  value  of  property. 
So  far  from  laying  aside  their  own  general  knowledge 
and  ideas,  the  jury  should  have  applied  that  knowl- 
edge and  those  ideas  to  the  matters  of  fact  in  evi- 
dence, in  determining  the  weight  to  be  given  to  the 
opinions  expressed;  and  it  was  only  in  that  way 
that  they  could  arrive  at  a  just  conclusion.  While 
they  cannot  act  in  any  case  upon  particular  facts 
material  to  its  disposition  resting  in  their  private 
knowledge,  but  should  be  governed  by  the  evidence 
adduced,  they  may,  and,  to  act  intelligently,  they 
must  judge  of  the  weight  and  force  of  that  evidence 
by  their  own  general  knowledge  of  the  subject  of  in- 
quiry. If,  for  example,  the  question  were  as  to  the 
damages  sustained  by  a  plaintiff  from  a  fracture  of 
his  leg  by  the  carelessness  of  a  defendant,  the  jury 
would  ill  perform  their  duty,  and  probably  come  to 
a  wrong  conclusion,  if  controlled  by  the  testimony 
of  the  surgeons,  not  merely  as  to  the  injury  inflicted, 
but  as  to  the  damages  sustained;  they  should  ignore 
their  own  knowledge  and  experience  of  the  value  of 


RIGHT    AND    DUTY    OF   JURY.  489 

a  sound  limb.  *  *  They  should  not  have  been 
instructed  to  accept  the  conclusions  of  the  profes- 
sional witnesses  in  place  of  their  own,  however  much 
that  testimony  may  have  been  entitled  to  considera- 
tion. The  judgment  of  witnesses,  as  a  matter  of 
law,  is  in  no  case  to  be  substituted  for  that  of  the 
jurors."1 

And  where  the  question  was  as  to  the  genuineness 
of  a  writing  it  was  held  that  the  jurors,  having  the 
paper  before  them  for  inspection  along  with  genuine 
writings,  were  not  required  to  rely  solely  on  the  tes- 
timony of  the  experts,  but  might  use  their  own 
judgment  in  deciding  upon  the  effect  of  a  compari- 
son of  the  writings.2 

So  in  a  recent  case  it  was  decided  that  no  error 
was  committed  in  holding  that  the  jury  could  de- 
termine just  as  well  as  anybody  else  whether  leaves 
that  had  been  detached,  and  were  fastened  in  a 
small  book,  belonged  to  it  or  not,  or  were  likely  to 
have  become  loosened  in  a  given  time.  "  Expert 
testimony,"  said  the  court,  "cannot  be  of  any  use 

1  Head  v.  Hargrave,105  U.  S.  45.  la  this  connection  attention  is  called 
to  Wood  v.  Barker,  49  Mich.  295,  where  the  question  was  as  to  the  value  of 
medical  services.    In  this  case  the  trial  court  charged  the  jury  in  sub- 
stance that  they   were  at  liberty,  if  not  satisfied   with  the  testimony  of 
the  experts,  to  use  their  own  judgment  on  the  question  of  value.     On 
appeal  the  Supreme  Qourt  said:  "There  can  be  no  presumption  of  law 
concerning  the  value  of  a  surgeon's  services,  and  there  is  no  presump- 
tion that  a  jury  can  ascertain  it  without  testimony  of  some  kind,  from 
persons  knowing  something  about  such   value.    As  already  suggested, 
there  was  positive  testimony  of  value  not  discredited,  and,  in  the  case 
of  Dr.  Harding,  given  by  a  disinterested  witness  called   for  important 
purposes  by  the  defendant  himself.     We  can  see  no  sufficient  reason  for 
the  suggestion  that  all  of  this  testimony  might  be  disregarded,  and  there 
is  no  rule  which  would  allow  the  jury  to  entirely  ignore  the  testimony, 
and  at  the  same  time  to  form  an  independent  conclusion   without  testi- 
mony upon  a  matter  which  required  proof  beyond  their  conjectures  or 
their  opinions." 

2  People  v.  Gale,  50  Mich.  237. 


490  EXPEKT    TESTIMONY. 

in  helping,  and  is  improper  to  be  used  in  pre- 
venting a  jury  from  drawing  conclusions  for  them- 
selves from  every  day  appearances  open  to  the  judg- 
ment of  any  intelligent  observer." 

5.  But  there  are  cases  in  which  the  question  at 
issue  is  not  of  such  a  nature  that  the  '  'practical  com- 
mon sense''  of  a  jury  will  enable  them  to  reach   a 
conclusion,  and    when   the  conclusion  must  in   the 
very  nature  of  things  depend  on   the  testimony  of 
experts.     In  such   cases,  of   course,  the  jury  must 
accept  and  act  upon  the  testimony  of  the   experts, 
just  as  in  other  cases  they  must  accept  and  act  on 
the   testimony  of  ordinary  witnesses  testifying  to 
facts.2 

6.  The  value  of  expert  testimony  will  depend  on 
the  experience  and  knowledge  which  the   witness 
has  and  evinces  concerning  the  matter  about  which 
he  testifies,3  his  freedom  from  bias,  and  the  reasons 
which  he  gives  for  the  conclusions  which  he  has  ex- 
pressed.4 

7.  The  opinions  of  experts  cannot  prevail  over 
actual  facts,  and  they  are  never  to  be  regarded  when 
they  manifestly  conflict  with  established  facts.  When 
facts  are  shown  to  the  satisfaction  of  the  jury,  they 
must  act  on  them  rather  than  on  opinions.5 

8.  Expert  testimony  is  of  no  value   when  based 

1  Passmore  v.  Passmore's  Estate,  60  Mich.  463,  468. 

2  Getchell  v.  Hill,  21   Minn.  464,  465;  Wood  v.  Barker,  49  Mich.  295, 
298. 

3  Union  Ins.  Co.   v.  Smith,  124   U.  S.  405,  423;  McGowan  v.  Am.  Tan 
Bank  Co.,  121  U.  S.  575, 609;  Lehigh  Valley  Coal  Co.  v.  City  of  Chicago, 
26  Fed.  Rep.  415;    State  v.  Hackett,  70  Iowa,  442;    Snyder  v.  State,  70 
Ind.  349. 

4  Bennison  v.  Walbank,  38  Minn.  313. 

5  Stone  v.  Chicago,  etc.  R.  R.  Co.,  66  Mich.  76,  82;  Laughlin  v.  Street 
Railway   Co.,  62   Mich.  220,  228;    People   v.  Millard,  53   Mich.  63,    77; 
Treat  v.  Bates.  27  Mich.  390. 


RIGHT  AND  DUTY  OF  JURY. 

on  the  testimony  of  a  witness  which  is  rejected  by 
the  jury,1  or  upon  a  hypothetical  <|iiestion  which 
assumed  as  true  facts  not  supported  by  the  evi- 
dence.2 

The  following  instruction  has  been  sustained  in 
reference  to  expert  testimony  based  on  hypothetical 
questions:  "  You  are  not  to  take  for  granted  that 
the  statements  contained  in  the  hypothetical  ques- 
tions which  have  been  propounded  to  the  witnesses 
are  true.  Upon  the  contrary,  you  are  to  carefully 
scrutinize  the  evidence,  and  from  that  determine 
what,  if  any,  of  the  averments,  are  true;  and  what, 
if  any,  are  not  true.  Should  you  find  from  the  evi- 
dence that  some  of  the  material  statements  therein 
contained  are  not  correct,  and  that  they  are  of  such 
a  character  as  to  entirely  destroy  the  reliability  of 
opinions  based  upon  the  hypothesis  stated,  you  may 
attach  no  weight  whatever  to  the  opinions  based 
thereon.  You  are  to  determine  from  all  the  evi- 
dence what  the  real  facts  are,  and  whether  they  are 
correctly  or  not  stated  in  the  hypothetical  question 
or  questions.  I  need  hardly  remind  you  (for  it  will 
suggest  itself  to  your  own  minds),  that  an  opinion 
based  upon  an  hypothesis  wholly  incorrectly  as- 
sumed, or  incorrect  in  its  material  facts,  and  (to  such 
an  extent  as  to  impair  the  value  of  the  opinion,  is 
of  little  or  no  weight,"  The  case  being  a  criminal 
one  the  court  adds:  •  'Upon  the  matters  stated  in  these 
hypothetical  questions,  and  which  are  involved  in 
this  investigation,  you  are  to  give  the  defendant  the 
benefit  of  all  reasonable  doubt,  if  any  there  should 
be;  and  when  there  is  a  reasonable  doubt  as  to  the 

1  Stone  v.  Chicago,  etc.  R.  R.  Co..  66  Mu-h.  7»;. 

2  Hitchcock  v.  Burgett,  38  Mich.  508. 


492 


EXPERT   TESTIMONY. 


truth  of  any  one  of  the  material  facts  stated,  resolve 
it  in  the  defendant's  favor."1 

9.  A  jury  is  not  required  to  decide  a  case  in  favor 
of  the  opinions  expressed  by  the  greater  number  of 
the  experts.2 

The  opinion  of  one  expert  may  be  of  greater  value 
than  the  opposite  opinion  of  several  witnesses,  ac- 
cording as  the  jury  is  satisfied  that  he  is  possessed 
of  greater  knowledge  and  experience  of  the  subject 
than  are  the  others,  or  has  stated  more  probable 
reasons  for  his  opinion  than  they  have  done,  or  has 
given  fuller  details  of  the  case.  Hence,  it  has  been 
held  proper  to  caution  the  jury  that  in  summing  up 
the  testimony  on  any  given  question  "they  should 
not  alone  count  witnesses,  as  that  is  not  always  the 
most  satisfactory;  neither  is  it  the  most  certain  cri- 
terion of  the  truth."3 


1  Guetig  v.  State,  66  Ind.  94.      See  §  32. 
8  Getchell  v.  Hill,  21  Minn.  464,  471. 

3  State  v.  Bohan,  19  Kan.  28,  34.    And  see  Ely  v.  Tescb,  17  Wis.  202; 
Bierbach  v.  Goodyear  Rubber  Co.,  54  Wis.  208. 


APPENDIX, 


THE  IDENTIFICATION  OF   HAIR. 

This  subject  is  considered  in  section  63,  p.  146.  The  following  au- 
thorities may  be  consulted : 

Reissner. — Beitrage  zur  Kenntniss  der  Haare  des  Menschen  u.  der 
Saugethiere.  1854. 

Jaumes. — De  la  distinction  entre  les  poils  de  1'homme  et  les  poils  des 
animaux  considered  au  point  de  vue  medico  I6gal,  1882. 

Joannel. — Le  poll  humain,  ses  varietes  d'aspect,  leur  signification  en 
medecine  judiuaire,  1878. 

Vestorten. — Das  menschliche  Haar  und  seine  gerichtarztliche  Bed- 
eutung,  1874. 

Virchow. —  Idenitattab  oder  nicht  —  Identitat  von  Haaren  —  (Ges. 
Abhandl.  a.  d.  Geb.  d.  off.  med.  1879-ii-552-556. 

Pfaff. — Das  menschliche  Haar  Leipsig,  1869. 

The  subject  of  the  identification  of  hair  was  involved  in  the  famous 
Cronin  case,  recently  tried  in  Chicago,  in  which  Coughlin,  O'Sul- 
livan,  Burke  and  Kunze  were  tried  for  the  murder  of  Dr.  Cronin,  a 
prominent  leader  in  Irish  affairs.  The  following  abstract  of  the  testi- 
mony of  the  experts,  which  is  made  from  the  record,  may  prove  of 
value,  and  is  therefore  given : 

Henry  L.  Tolman  testified  that  he  had  had  a  large  amount  of  expe- 
rience with  the  microscope  in  determining  the  character  of  hair.  That 
he  had  collected  and  examined  the  hairs  of  men,  women  and  children,  as 
well  as  the  leading  kinds  of  hairs  of  animals  from  the  different  sections  of 
the  world,  so  far  &s  he  could  get  them,  for  the  last  six  or  seven  years.  That 
human  hair  could  be  distinguished  by  a  scientific  eye  with  the  aid  of  a 
microscope  from  the  hairs  of  other  animals.  That  human  hair  standing 
by  itself  could  be  distinguished  only  by  an  expert  eye  through  the  aid 
of  the  microscope  when  it  was  of  any  length.  That  if  it  was  a  half  inch 
or  spike  shape  it  could  be  told  by  the  eye,  but  when  it  was  two  or  three 
inches  long  it  required  the  aid  of  the  microscope.  That  the  hairs  he  ex- 
amined in  the  Cronin  case  were  human  hairs. 

Dr.  William  T.  Belfield,  who  had  studied  the  use  of  the  microscope  in 
Vienna,  in  London  and  Chicago,  and  had  been  a  lecturer  in  Rush  Med- 
ical College,  testified  that  science  could  determine  whether  hair  was  or 


494  APPENDIX. 

was  uot  human  hair,  and  that  the  hair  he  had  examined  in  this  case  was 
all  human  hair.  The  characteristics  of  hair  as  shown  by  the  microscope 
were  their  diameters — the  markings  on  the  surface,  the  relation  between 
the  central  canal,  or  medulla,  as  it  is  termed,  to  the  rest  of  the  hair,  the 
distribution  of  colored  spots  through  the  structure  of  the  hair.  That  hu- 
man hairs  and  those  of  many  other  animals  were  covered  with  scales  on 
the  outside,  resembling  in  a  general  way  the  .scales  of  fishes;  overlap- 
ped like  the  shingles  on  a  roof.  That  those  scales  varied  in  size,  and 
also  in  the  distance  between  consecutive  overlaps. 

Professor  Marshall  D.  Ewell,  of  the  Northwestern  University,  and  who 
was  a  Fellow  of  the  Royal  Microscopical  Society  of  London,  England, 
and  a  member  of  the  Illinois  State  Microscopical  Society,  testified  that  in 
the  present  state  of  science  there  was  not,  to  his  knowledge,  any  means  by 
which  human  hair  could  be  certainly  distinguished  from  all  other  hair, 
and  that  there  was  no  wray  by  which  it  could  be  scientifically  ascertained 
with  definiteness  that  two  given  specimens  of  hair  came  from  the  same 
bead.  ''Scaly  epithelium,"  he  said,  "is  found  in  all  sorts  of  animals 
and  reptiles.  Every  time,  you  comb  your  head  you  comb  out  epithelium ; 
every  time  you  rub  your  face  you  rub  off  scaly  epithelium.  Every  time 
you  expectorate  you  expectorate  epithelium,  every  time  you  dust  your 
clothes  you  shake  out  epithelium.  In  my  experience  it  is  found  every- 
where. I  have  found  it  in  carpet  sweeping?  or  sweepings  of  the  floor  in 
large  quantities — not  large  quantities,  but  inconsiderable  numbers  *  *  * 
I  don't  know  of  any  way,  and  I  can't  find  any  mentioned  in  the  books, 
whereby  it  can  be  scientifically  determined  whether  or  not  this  scaly 
epithelium  is  from  the  human  body.  The  presence  of  scaly  epithelium 
in  a  given  specimen  of  blood  taken  from  the  floor  of  a  dwelling  would 
not  be  of  any  scientific  value  in  determining  whether  the  blood  was 
human  blood  or  not."  He  also  testified  that  there  were  certain  dog's 
hairs  which  could  not  be  distinguished  from  the  human  hair  when  ex- 
amined under  the  microscope.  ''Take  a  yellow  or  brown  dog,"  he  said, 
"and  you  will  find  quite  numerous  hairs  that  under  a  microscope  pre- 
sent identically  the  same  appearance.  We  determine  the  differences  in 
hairs  by  examining  the  image  which  is  projected  to  the  eye  by  the  mi- 
croscope. The  principal  characteristics  to  distinguish  hairs  under  the 
microscope  are  the  cortex,  configuration  and  scales  on  the  outside  of  the 
central  pith,  which  is  called  the  medulla.  In  a  great  deal  of  the  human 
hair  you  won't  find  any  medulla;  in  the  majority  of  them  you  will  not 
find  any  medulla.  I  supposed  they  had,  and  you  will  find  the  medulla 
in  some  of  them,  but  in  the  most  of  them  that  I  have  examined  I  did 
not  find  them,  and  therefore  you  have  simply  the  general  pigmentation 
and  configuration  of  the  edges,  and  these  are  so  nearly  alike  all  others 
that  you  cannot  tell  them  apart.  As  a  rule  you  will  find  medulla  in  the 
hairs  of  these  other  animals,  but  there  are  enough  of  them  that  do  not 
have  any  medulla  to  confuse  one.  A  single  hair  from  a  horse  may,  un- 
der a  microscope,  be  mistaken  for  a  human  hair.  *  *  *  There  are  a 
good  many  hairs  on  a  dog  that  cannot  be  distinguished  from  human 
hairs." 


APPENDIX.  495 

Professor  Harold  Moyer,  of  Rush  Medical  College,  Chicago,  and  who 
bad  studied  Microscopy  in  Arnold's  laboratory  Jn  Heidelberg,  testified 
that  in  the  present  state  of  science  there  was  no  means  by  which 
human  hair  could  be  certainly  distinguished  from  all  other  hair,  and 
none  by  which  it  could  be  scientifically  ascertained  with  definitenesg 
that  two  given  specimens  of  hair  came  from  the  same  head.  That  there 
was  a  variation  in  the  diameter  of  individual  hairs  taken  from  a  given 
individual,  and  that  he  thought  that  the  variation  was  as  great  in  the 
hiir  of  a  given  individual  as  the  variations  between  the  hairs  taken 
from  the  heads  of  different  individuals.  That  under  certain  circum- 
stances the  hair  of  some  of  the  lower  animals  was  liable  to  be  con- 
founded with  and  taken  for  human  hair,  particularly  if  there  were  only 
a  few  hairs.  That  the  microscope  was  of  no  service  in  determining  the 
color  of  hair.  That  it  was  impossible  to  distinguish  fuzz  or  lanugo 
from  all  other  substances.  That  there  was  no  distinct  structure  to  lan- 
ugo hairs;  that  they  looked  very  much  like  a  thread  of  silk,  and  were 
not  to  be  distinguished  in  some  instances  from  threads  of  silk  in  any  of 
their  optical  appearances.  That  he  di  J  not  think  the  fact  that  a  dozen 
of  these  little  fibres  in  a  specimen  of  blood  derived  from  the  floor  of  a 
dwelling  would  furnish  an}'  evidence  at  all  that  the  fibres  themselves 
were  lauugo.  That  the  fibres  might  have  been  there  before  IhB  blood 
was  placed  there;  that  such  fibres  are  found  upon  furniture  and  tables 
and  chairs.  Tuat  the  substance  called  scaly  epithelium  was  not  derived 
alone  from  the  human  body,  but  that  it  could  come  from  the  body  of 
other  animals.  He  also  said,  "I  do  not  wish  to  be  understood  as  stating 
that  there  are  no  differences  between  the  hair  of  animals  and  the  hair 
of t  man;  that  they  were  identical.  What  I  meant  was  that  there  are 
certain  hairs  found  upon  certain  animals  which  it  is  difficult  or  impos- 
sible to  distinguish  from  the  human  hair.  The  medullary  sheath  varies 
in  size  in  human  hair.  I  should  think  that  the  diameter  of  the  medul- 
lary sheath  was  about  one- eighth  or  one-tenth  of  the  whole  diameter  of 
the  hair;  I  don't  know  as  to  a  horse's  hair,  nor  as  to  the  hair  of  an  ox; 
I  remember  how  it  is  in  dog's  hair.  Some  dogs'  hair  resembles  very 
closely  in  the  size  and  medullary  sheath  all  the  characteristics  of  the 
human  hair.  I  do  not  know  positively  that  the  hair  of  any  other  ani- 
mal except  a  dog  would  be  confused  with  the  hair  of  a  man. 
I  think  by  the  aid  of  a  microscope  you  might,  to  a  great  extent,  exclude 
all  the  hairs  of  other  animals  except  the  dog.  I  want  to  say,  though, 
that  my  examination  of  hair  does  no.,  include  a  great  many  animals,  or 
a  very  great  number  of  observations." 

Dr.  Lester  Curtis,  at  one  time  President  of  the  State  Microscopical 
Society  of  Illinois,  and  lecturer  in  the  Chicago  Medical  College,  and 
who  had  studied  Microscopy  in  Germany,  and  had  studied  with  the  mi- 
croscope since  1857,  and  had  lectured  upon  the  subject  of  hair,  testified 
that  he  did  not  think  that  in  the  present  state  of  science  there  were  any 
means  by  which  human  hair  could  be  certainly  distinguished  from  all 
other  hairs,  or  that  two  given  specimens  of  hair  came  from  the  same 


496  APPENDIX. 

bead;  that  the  variations  of  the  diameters  of  the  hairs  of  a  given  indi- 
vidual were  very  great;  that  there  were  noticeable  differences  in 
the  structure  of  the  hair  of  different  persons,  and  that  the  hair  of 
some  lower  animals  was  liable  to  be  confounded  with  und  taken  for 
human  hair;  that  the  microscope  was  of  no  value  in  an  examination 
as  to  the  color  of  the  hair,  in  fact  he  thought  it  would  be  a  disadvan- 
tage rather  than  an  advantage;  that  most  hair  that  has  much  color 
was  opaque,  and  only  could  be  seen  from  the  surface  and  the  refleciion 
of  light  from  the  surface  of  the  hair  produced  a  dnzzling  effect  that  was 
confusing,  so  that  the  color  and  some  of  the  gross<  r  p«  culiarities  could 
be  determined  quite  as  accurately  with  the  naked  eye,  if  not  more  so, 
than  with  the  microscope;  that  lanugo  could  not  be  certainly  distin- 
guished in  a  scientific  way  from  all  other  substances,  and  that  it  ap- 
peared structureless;  that  all  hair  is  built  on  the  same  general  plan. 
In  human  hair  the  medulla  is  usually  present  in  the  larger  hairs,  but 
may  be  absent  in  the  smaller  ones.  As  a  general  thing  the  medulla  is 
more  plainly  marked  in  the  lower  animals  than  it  is  in  the  human  sub- 
ject. Some  dogs'  hair  shows  the  medulla  very  plainly,  some  do  not. 
A  dog's  hair  has  a  medulla  somewhat  more  plainly  marked  than  it  is  in 
the  human  hair,  and  the  epithelium  on  the  outside  is  a  little  more 
sharply  defined.  This  appears  only  by  means  of  the  microscope.  A 
horse's  hair  also  has  a  medulla  more  plainly  marked  than  the  human 
hair,  but  I  have  seen  a  good  many  specimens  of  horses'  hair  that  had  no 
medulla  at  all. 

THE  IDENTIFICATION  OF  BLOOD. 

This  subject  is  considered  in  section  59,  p.  139.  It  has  usually  been 
regarded  by  scientists  as  possible  to  distinguish  human  blood  from  the 
blood  of  certain  animals,  but  not  from  that  of  all  animals,  and  we  have 
so  stated  in  the  body  of  this  work.  This  question  was  raised  in  the 
famous  Cronin  case,  already  referred  to  in  this  appendix,  and  the  tes- 
timony of  the  experts  in  that  case  tends  to  throw  doubt  over  the  whole 
matter,  and  to  show  that  the  former  theories  on  this  subject  are  errone- 
ous. A  reference  to  the  testimony  may  be  of  some  use  and  is  here 
given : 

Professor  Walter  Haines,  of  the  Rush  Medical  College,  testified  that 
there  was  no  chemical  test  by  which  a  person  could  accurately  deter- 
mine what  kind  of  blood  a  given  specimen  was,  whether  it  was  the 
blood  of  a  bird  or  the  blood  of  a  mammal.  The  state  of 
health  may  influence  the  size  of  the  blood  corpuscles. 
"Writers  state  that  in  some  classes  of  disease  the  corpuscles 
are  frequently  much  laiger  than  they  are  in  the  normal  condi- 
tion, and  in  other  diseased  conditions  they  may  be  very  much  smaller 
than  they  are  in  the  average  normal  condition.  The  corpuscles  may 
vary  in  size;  some  of  them  average  very  closely.  In  an  infant  child 
the  corpuscles  are  larger  than  they  are  in  an  adult.  They  are  larger 
in  the  young  of  any  animal  than  in  the  blood  of  the  grown  animal. 


Corpuscles  in  the  infant  are  considerably  larger  than  in  the  adult.  *  * 
They  (corpuscles  from  ox  blood)  cannot  be  distinguished  by  inspection 
from  that  of  a  man,  at  least  I  don't  undertake  to." 

Henry  L.  Tolman,  a  microscopist,  testified:  '-From  the  examination 
made  by  me,  I  should  say  that  the  blood  was  human  blood,  partly  be- 
cause the  average  of  all  these  measurements  bring  it  above  the  gen- 
erally established  average  of  human  blood,  which  is  about  3300  or 
3350th  of  an  inch,  and  second  because  the  presence  of  the  hair  adds  very 
strong  confirmation  to  that  view.  *  *  *  The  effect  of  disease  upon 
the  size  of  the  corpuscles  is  to  shrink  them  and  change  them  in  color, 
sometimes  in  one  or  two  cases  it  increases  their  size.  I  have  examined 
corpuscles  taken  from  a  human  being  in  various  kinds  of  disease. 

William  T.  Belfteld,  M.  Z>.,  stated  he  was  able  to  determine  what  the 
character  of  the  blood  was  within  certain  limits.  The  nature  of  the 
blood  he  determined  by  the  size,  shape  and  structure  of  the  so-called 
corpuscles.  That  the  blood  corpuscles  examined  by  him  in  this  case 
were  such  as  might  be  derived  from  human  blood.  -'There  are  several 
wild  animals  which  furnish  corpuscles  very  closely  approximating  to- 
that  of  man — the  opposum,  the  monkey,  kangaroo,  seal,  beaver,  porcu- 
pine, wolf,  and  then  two  domestic  animals,  the  dog  and  the.  guinea 
pig."  The  figure  usually  given  for  human  corpuscles  is  3200  to  the 
inch.  The  size  varies  somewhat;  sometimes  it  may  be  3150  to  the 
inch,  sometimes  3300  to  the  inch,  but  generally  speaking  we  say  3200  to 
the  inch."  The  dog's  corpuscles  measure  usually  3500  to  the  inch,  a 
little  more  or  a  little  less  in  different  individuals.  In  guinea  pigs  we 
say  in  round  numbers  3400  to  the  inch." 

Professor  Marshall  D,  Swell,  M.  D.,  of  the  Northwestern  University 
stated  it  as  his  opinion  that  in  the  present  state  of  science  it  was  im- 
possible to  determine,  in  the  case  of  a  specimen  of  dried  blood,  by  the 
measurement  of  the  blood  corpuscles  anything  more  or  further  than  the 
mere  fact  that  it  was  the  blood  of  some  mammal.  He  said  :  "I  am  very 
decidedly  of  the  opinion,  judging  from  my  experience,  that  in  the  pres- 
ent state  of  science,  it  is  impossible  to  determine  certainly,  even  under 
the  most  favorable  circumstances,  that  any  given  specimen  of  fresh 
blood  is  human  blood.  I  have  examined  the  blood  of  quite  a  number 
of  patients  under  various  diseases  to  find  out  the  effect  of  the  disease 
upon  the  diameter  of  the  blood  corpuscles.  The  disease  may  have  the 
effect  to  enlarge  the  corpuscles,  that  is,  to  make  their  average  considera- 
bly larger  than  that  which  is  assumed  to  be  the  average  size  of  the  hu- 
man corpuscles,  or  it  may  have  the  effect  to  diminish  the  size  of  them. 
Professor  Harold  Moyer,  of  Rush  Medical  College,  testified  :  "The  ef- 
fect of  disease  in  a  human  being  is  to  vary  greatly  the  size  of  the  cor- 
puscles, making  them  either  larger  or  smaller.  A  child's  corpuscles  are 
larger  as  a  rule  than  are  adults.  In  the  present  state  of  science  it  is  im- 
possible to  determine  with  certainty,  even  under  the  most  favorable  cir- 
cumstances, that  any  given  specimen  of  fresh  blood  is  human  blood.'" 
"There  are  a  number  of  animals  whose  copuscles  approximate  in  si/ • 

(32) 


498  APPENDIX. 

the  corpuscles  in  human  blood;  their  structure  is  identical.  There  are 
two  or  three  animals  whose  corpuscles  are  larger  than  those  in  man — 
the  two-toed  sloth,  the  whale  or  the  elephant.  The  closest  approxima- 
tion is  found  in  the  blood  of  a  dog,  the  guinea  pig  rather  closely,  and 
the  rabbit  not  so  closely.  There  are  others,  I  think,  but  I  cannot  men- 
tion them  now;  the  average  number  of  corpuscles  to  the  inch  in  a  rab- 
bit is,  I  think,  3800.  In  the  human  blood  I  do  not  think  there  is  any 
absolute  average;  there  is  an  average  recognized  of  3200  or  3250  to  the 
inch.  The  corpuscles  of  a  puppy  are  larger  than  the  human  corpuscles. 
It  is  impossible  to  distinguish  in  an  adult  dog  the  blood  corpuscles  from 
those  of  a  human  being." 

Lester  Curtis,  M.  D.,  testified  :  "In  the  present  state  of  science  it  is 
possible  to  determine  accurately  by  the  measurement  of  blood  corpus- 
cles from  a  specimen  of  dried  blood  nothing  further  than  the  mere  fact 
that  it  is  the  blood  of  some  mammal.  There  are  two  main  methods  of 
determining  whether  any  fluid  is  blood  or  not;  one  is  by  chemical  ex- 
amination and  the  other  is  by  the  microscope ;  chemically  the  human 
blood  corresponds  exactly,  I  believe,  with  that  of  all  mammals — all  an- 
imals that  suckle  their  young;  also  animals  like  frogs  and  fish.  The 
chemical  composition  is  slightly  different  in  frogs  and  fish.  But  all 
mammals  have  blood  as  far  as  known  of  identical  chemical  composition; 
that  leaves  only  the  examination  with  the  microscope  to  identify  them, 
andthe.corpuscles  are  so  nearly  alike  in  different  mammals  that  it  is  very 
difficult,  if  not  impossible,  to  distinguish  between  them.  The  corpus- 
cles vary  in  size  somewhat  in  different  mammals  within  natural  limits. 
I  believe  some  observers  claim  that  they  can  identify  the  blood  of  a 
sheep,  possibly  that  of  an  ox;  distinguish  it  at  least  from  the  human 
blood  by  examination  of  a  microscope  and  by  measuring  the  corpuscles , 
But  the  best  and  most  conservative  of  observers  are  inclined  to  doubt 
that  very  seriously.  There  are  a  good  many  animals  which  it  is  cer- 
tainly impossible  to  distinguish  between.  From  my  own  observation 
and  experience  I  would  not  dare  to  say  when  blood  is  dried,  whether 
it  was  the  blood  of  an  ox,  a  sheep,  a  horse  or  a  man."  He  also  testified 
that  disease  might  change  the  diameter  of  blood  corpuscles. 

Those  who  are  interested  in  the  question  of  the  identification  of 
human  blood,  are  referred  to  two  articles  written  by  Professor  Marshall 
D.  Ewell,  LL.  D.,  and  published  in  the  North  American  Practitioner 
(Chicago) ,  in  the  March  and  April  numbers  for  1890.  These  articles 
will  be  found  valuable  as  the  latest  contribution  to  the  literature  of  this 
subject. 


INDEX. 

[THE  FIGURES  REFER  TO  PAGES.] 


ABORTION, 

expert  testimony  iu  cases  of,  154. 
ABSTRACT  QUESTIONS  OF  SCIENCE, 

opinions  on,  are  not  admissible  if  not  related  to  facts  in  issue,  33. 

ACCIDENT, 

whether  anything  could  have  been   done  to  prevent,  82,  230,  236. 
whether  wound  was  inflicted  by,  127. 

ACCOMPLICE, 

cautionary  instructions  of  courts  as  to  the  testimony  of,  447. 
ACCOUNTANT, 

testimony  of,  as  to  result  of  computations  from  a  schedule,  280. 
as  to  what  would  be  a  fair  compensation  for  the  services  of  an,  378. 

ACTIONS, 

of  a  person,  opinions  as  to,  11. 
ACTUARIES, 

opinion  of,  as  to  the  value  of  an  annuity,  386. 

ADMISSIBILITY  OF  EXPERT  TESTIMONY.     See  also 
OPINION  EVIDENCE. 

the  practice  of,  an  ancient  one,  4,  5. 

preliminary  questions  to  be  determined,  7. 

admissibility  of  non-professional  witnesses   in   cases  of  necessity, 
9,  12. 

the  inadmissibility  of  opinion  evidence,  13-19. 

when  expert  testimony  admissible,  19,  25. 

rules  in  New  Hampshire  under  which  expert  testimony  admissible,  22. 

as  to  science  and  art,  24. 

when  the  opinions  of  experts  are  inadmissible,  25-35. 

is  for  the  court,  27. 

cases  illustrative  of  the  inadmissibility  of  the  opinions  of  experts, 
27-32. 

inadmissibility  of  opinions  founded  on  a  theory  of  morals  or  duty.  32. 


500  INDEX. 

ADMISSIBILITY  OF  EXPERT  TESTIMONY— Con- 
tinued. 

inadmissibility  of  opinions  on  abstract  questions  of  science  not  related 
to  the  facts  in  issue,  33. 

inadmissibility  of  opinions  based  on  speculative  data,  33,  34. 

admissibility  of  the  testimony  of  experts  who  have  made  >>x  parte 
investigations,  35,  36. 

what  testimony  is  admissible  concerning  wounds,  127-132. 

in  cases  of  rape,  150-153. 

in  cases  of  abortion,  pregnancy  and  seduction,  154,  155. 

opinion  of  non-professional  witnesses   as  to  mental  condition,  ]"><]. 

testimony  as  to  mental  condition,  161,  1G4. 

evidence  bearing  on  question  of  insanity,  167-170. 

admissibility  of  the  opinions  of  non-professional  witnesses  on  ques- 
tions relating  to  medical  science,  188-192. 

admissibility  of  expert  testimony  as  to  diseases  of  animals,  l'.)2-r.)4. 

expert  testimony  in  the  science  of  law,  195-228. 

ID  the  trades  and  arts,  229-284. 

expert  testimony  in  handwriting,  285-347. 

writings  admissible  for  comparison  in  orthography,  341 . 

on  questions  of  value,  348-388. 

admissibility  of  opinions  of  ordinary  witnesses  on  questions  of  value, 
352,  354. 

when  opinions  of  witnesses  on  questions  of  value  are  inadmissible 
354-356. 

as  to  value  of  real  estate,  371-377. 

as  to  value  of  personal  property,  377-380. 

admissibility  of  evidence  of  value  of  services  of  lawyers  and  dot-tors, 
380-386. 

admissibility  of  scientific  books,  390-408. 

evidence  of  certain  scientific  works,  391-394. 

opinion  and  statement  contained  in  standard  treatises  on  inexact 
sciences,  394-407. 

admissibility  of  medical  books  for  the  purposes  of  contradicting  an 
expert,  407. 

as  contained  in  official  reports,  418. 

ADULTERATION  OF  MILK, 

opinion  as  to,  265. 

AGE, 

of  a  person,  opinion  evidence  as  to,  10,  267. 
of  cattle,  267. 
of  writings,  302. 

admissibility  of  standard  tables  of  mortality  to  show  expectation  of 
life  at  a  particular  age,  387. 

AGRICULTURISTS.  See  FAKMERS;    GARDENERS. 


INDKX. 

ALABAMA. 

construction  of  written  foreign  laws  in,  212. 

comparison  of  handwriting  by  experts  in,  318. 
ALMANAC, 

admissibility  of,  in  evidence,  391,  392,  393. 

AMBROTYPIST, 

opinion  of,  268. 

ANCIENT  WRITINGS, 

proof  of,  302. 

ANIMAL, 

opinions  as  to  disposition  of,  12. 

veterinary  surgeon  may  testify  as  to  disease  in,  192. 

experts  in  the  diseases  of,  192-194. 

who  else  may  testify  as  to  disease  in,  193.  > 

whether  whistling  in  horses  is  unsoundness,  194. 

effect  on  horses  of  running  away,  266. 

causes  affecting  the  health  of  cattle,  266. 

opinions  as  to  injury  to  cattle,  267. 

opinions  as  to  age  of  cattle,  267. 

how  many  persons  needed  to  drive  certain  animals,  267. 

number  of,  that  could  be  shipped  safely  together,  268. 

what  would  be  likely  to  frighten  horses  of  ordinary  gentleness,  280. 

ANNUITIES, 

expert  testimony  as  to  the  value  of,  285-388. 

ANNUITY  TABLE, 

admissible  in  evidence,  391. 
APPELLATE  COURT, 

competency  of  experts  as  a  subject  of  review  by,  54-57. 
what  bill  of  exception  must  show,  57. 
how  objections  must  have  been  taken,  ?7. 

ARCHITECT, 

opinions  of,  as  to  value  of  a  house,  281,  361,  362. 
opinions  of,  as  to  work  done  on  a  building,  281. 

ARGUMENT, 

reading  from  scientific  books  in,  411-418. 

ARKANSAS, 

comparison  of  handwriting  by  experts  in,  318. 
weight  of  medical  expert  testimony  in.  475. 

ART, 

admissibility  of  expert  testimony  as  to,  20. 
persons  skilled  in,  may  give  opinions,  22. 
meaning  of  term,  24. 
testimony  of  experts  as  to.  229,  284. 


502  1M)KX. 

ARTIST, 

opinions  of,  as  to  the  genuineness  of  painting,  268. 
opinions  of,  as  to  value  of  a  picture,  362. 

ASSUMING  THE  EXISTENCE  OF  FACTS, 

right  of  counsel  as  to,  in  framing  the  hypothetical  question,  65. 
when  the  opinion  of  the  expert  must  be  asked  on  assumed  state  of 

facts,  65-74. 

when  it  need  not  be,  74. 
doctrine  as  to,  on  the  cross-examination,  79. 

ATTORNEY  AND  CLIENT.  See  also  LAWYERS. 

expert  testimony  as  to  the  powers  and  obligations  of  an  attorney  in 

relation  to  his  client,  227. 
expert  testimony  as  to  the  value  of  legal  services,  380-383. 

AUTHOR, 

opinions  of  an,  as  to  value  of  literary  production,  361 . 

BAGGAGE-MAN, 

opinion  of,  242. 

BANK  NOTE  DETECTORS, 

such  books  are  inadmissible  in  evidence,  344. 
BANK  NOTES, 

detection  of  counterfeits,  344-345. 

officers  of  banks  as  experts  upon  counterfeit  bank  notes,  345. 

statutory  provision  as  to  proof  of  genuineness,  346,  347. 

BANKERS, 

opinions  of,  30. 
•  as  experts  in  handwriting,  297. 

opinion  of,  as  to  the  genuineness  of  bank  notes,  345. 
BLACKSMITH, 

opinions  of,  as  to  the  shoes  fit  for  horses,  278. 

BLOOD, 

number  of  corpuscles  in,  139. 
expert  testimony  as  to  distinguishing.  141. 
use  of  diagram  by  experts  in,  142. 
right  of  both  sides  to  examine  specimens,  142. 
whether  ordinary  witnesses  can  testify  as  to,  143. 
whether  chemical  analysis  is  necessary,  143. 
proper  questions  concerning  blood  stains,  144. 

as  to  possibility  of  distinguishing  human  blood,  see  Appendix,  496. 
identification  of,  see  Appendix,  496. 
BOAT  BUILDER, 

opinion  of,  235. 

BOOK-KEEPER, 

inadmissible  opinion  of,  52. 
as  expert  in  handwriting,  2'.*;*. 


IM>KX. 

BOOKS.  See  also  SCIENTIFIC  BOOKS. 

admissibility  of  statute  books  to  prove  foreign  written  law,  i'ii7. 

authentication  of,  by  evidence  of  expert,  208. 
BOUNDARIES, 

declarations  as  evidence  of,  256. 
BRAKEMAN, 

as  to  prudence  of,  in  making  coupling,  28. 

opinion  of,  as  to  sparks,  237. 

whether  in  proper  place,  238. 

of  train,  as  an  expert,  239. 

opinion  as  to  stoppage  of  trains,  239. 

whether  exercised  ordinary  care,  239. 

sudden  turning  on  of  steam,  239. 

BRASS  FINISHERS, 

opinions  of,  260. 
BRICK  MAKERS, 

opinions  of,  280. 

BRICK  MASON, 

opinion  of,  263. 
BRIDGE, 

opinion  as  to,  14,  76,  251,  253. 
as  to  necessity  of  keeping  gates  of,  shut,  32. 
BROKERS, 

opinions  as  to  note  written  on  tracing  paper,  30. 
opinions  as  to  course  of  business,  272. 
opinions  as  to  technical  terms,  276. 
opinions  as  to  value  of  stock,  362,  378,  379. 
opinions  as  to  counterfeits,  345. 

BUILDERS, 

how  cornice  should  be  placed,  262. 

opinion  as  to  cost  of  building,  262. 

opinion  as  to  effect  of  employing  architects,  263. 

of  boats,  opinions  of,  235. 

of  locomotives,  opinions  of,  235. 

of  mills,  opinions  of,  257,  258. 

opinion  of,  as  to  value,  362. 
BURDEN  OF  PROOF, 

on  person  seeking  to  exclude  testimony  of  physician,  10»i. 
CABINET  MAKER, 

opinion  of-,  263. 

CALIFORNIA, 

experts  as  to  the  nature  and  quality  of  ink  in,  308. 
statutory  provisions  concerning  comparison   of  handwriting  in,  :>12. 
comparison  of  disputed   writing   may  be  made  with  any  writir<j 
proved  to  be  genuine  in,  330. 


">O  I  INDKX. 

CAL1FORMA— Continued. 

books  of  science,  admissibility  of,  in,  398,  399. 

right  of  counsel  to  read  from  scientific  books,  in,  414. 

rule  in,  as  to  the  receipt  of  expert  testimony  with  caution,  44!». 
CAPTAINS  OF  BOATS, 

opinion  of,  235. 

CARLISLE  TABLES, 

admissible  in  evidence,  387. 
CARPENTER.     See  also  BUILDER. 

opinion  of,  as  to  whether  wall  was  worth  covering,  52. 

opinion  as  to  safety  of  turn-table,  241. 

opinions  of,  as  to  value,  362,  377. 

opinions  of,  as  to  safety  of  snip,  248. 
CASHIER, 

opinion  of,  as  to  handwriting,  297,  298. 
opinion  of,  as  to  counterfeits,  344,  345,  347. 

TATTLE-GUARD, 

sufficiency  of,  15. 
opinions  as  to  necessity  of,  154. 
CATTLEMEN, 

opinion  as  to  number  of  stock  in  range,  267. 

typography  of  country,  267. 

whether  cattle  were  wild,  267. 

time  required  to  gather  cattle  in  range,  267. 

condition  of  cattle,  267. 

causes  affecting  the  health  of  cattle,  267. 

weight  of  cattle,  267. 

injury  to  cattle,  267. 

age  of  animals,  267. 

driving  of  cattle,  268. 

safe  shipment  of  cattle,  268. 

opinions  as  to  value  of  cattle,  364. 

CAUSE, 

opinions  as  to  proximate,  ordinarily  admissible,  15. 

cause  of  a  given  effect  some  times  received,  15,  35,  252,  253,  279. 
CHARACTER, 

of  a  person,  opinion  evidence  as  to,  11. 
CHEMIST, 

opinion  of,  as  to  effects  of  poison  on  human  system.  105,  135. 

whether  are  necessarily  experts  as  to  death  from  poison,  134. 

results  of  chemical  analysis,  135. 

whether  chemical  analysis  always  necessary,  135,  136. 

analysis  by  chemist  rather  than  by  general  practitioner,  137. 

chemical  analysis  of  contents  of  stomach,  136,  138. 

proof  of  identity  of  thing  analyzed,  137. 

physicians  as  well  as  chemists  testify,  138.  « 


INDEX.  5()5 

CHEMIST— Continued. 

order  of  research  in  analysis  for  poison,  13.v 

examination  of  blood  by,  141. 

opinion  of,  as  to  safety  of  camphene  lamps,  145. 

opinion  of,  as  to  suitableness  of  fertilizer,  145. 

opinion  of,  as  to  obtaining  copper  from  gases,  145. 

level  at  which  water  stands  under  soil,  146. 

as  to  probability  of  evaporation  of  spirits,  146. 

as  to  constituent  parts  of  compound,  146. 

as  to  age  of  writing,  304. 

as  an  expert  on  the  nature  and  quality  of  ink,  304,  3<>x. 
CIVIL  ENGINEER, 

as  to  safety  of  gutter,  14. 

purpose  in  building  wall,  34. 

competency  of,  as  an  expert,  47,  251,  253. 

opinion  of,  as  to  the  safety  of  a  bridge,  251 . 

length  of  time  of  decay  in  timber,  256. 

overflow  of  land,  252. 

rules  for  the  construction  of  cuts,  252. 

approach  to  bridge,  252. 

cause  of  choking  of  harbor,  252. 

effect  of  drains,  252. 

what  land  is  suitable  for,  252.  • 

liability  to  inundation,  252, 

effect  of  mill  dam,  253. 

probable  cost  of  bridge,  253. 

custom  as  to  draw-bridges,  253. 

causes  for  scouring,  253. 

not  necessarily  experts  concerning  highways,  253. 

citing  standard  works,  253. 
CIVIL  LAW, 

limiting  the  number  of  experts  under  the,  91 . 
CLERKS, 

opinions  of,  52,  249,  297. 

COLORADO, 

comparison  of  handwriting  by  experts  in,  318. 
COMPARISON  OF   HANDWRITING.     See   HANDWRIT- 
ING. 
COMMON  EXPERIENCE, 

experts  may  testify  as  to  facts  not  within,  20,  247,  269. 
opinions  inadmissible  as  to  facts  of,  25,  261. 
what  are  facts  of,  28,  261. 

COMPENSATION  OF  EXPERTS, 

husband  must  defray,  in  surgical  examinations  of  wife  for  structural 

defect,  176. 
statutory  provisions  concerning  the,  420,  423. 


506  INDEX. 

COMPENSATION  OF  EXPERTS— Continued. 

experts  need  not  make  a  preliminary  examaination  unless  special 
compensation  is  made,  423. 

when  testifying  to  ordinary  facts,  425. 

whether  experts  may  decline  to  express  an  opinon  until  special 
compensation  is  made,  424. 

opinions  of  witness  on  medical  jurisprudence  as  to  additional  com- 
pensation to  experts,  428. 

American  cases  favoring  the  right  to  extra  compensation,  329,  433. 

American  cases  denying  the  right  to  extra  compensation,  433,  437. 

extra  compensation  allowed  in  England,  437,  438. 

the  effect  of  making-extra  compensation,  439. 

special  compensation  to  expert  employed  by  the  State  in  criminal' 
cases,  440. 

special  compensation  to  experts  summoned  for  the  defense,  paid  out 
of  the  public  treasury,  440. 

taxing  expense  of  services  of  an  expert  as  costs,  441. 

COMPETENCY  OF  EXPERTS, 

competency  of  non-professional  witnesses  to  give  opinion  evi- 
dence, 6. 

preliminary  questions  to  be  determined,  7. 

determination  of  the  question  of,  8. 

the  qualification  of  the  witness  to  testify  as  an  expert  must  first  be 
shown,  38. 

competency,  a  question  for  the  court,  39. 

calling  other  witnesses  to  determine,  40. 

witness'  opinion  as  to  his  own  competency,  40. 

preliminary  examination  to  determine,  40,  42. 

evidence  to  show  competency,  41. 

in  determining  whether  cross-examination  must  be  allowed,  41,  42: 

necessity  of  preliminary  examination  to  determine,  42. 

where  knowledge  is  derived  from  experience,  42,  45. 

presumed  from  their  calling,  43,  99. 

whether  it  depends  on  practicing  at  the  time,  43. 

where  knowledge  is  derived  from  study,  45,  51. 

where  knowledge  is  derived  from  observation  outside  their  speciaf 
calling,  51,  52. 

upon  what  the  competency  of  the  expert  rests,  53. 

does  not  depend  on  witness  having  highest  degree  of  skill,  53. 

as  a  subject  of  review  in  an  appellate  court,  54. 

how  objection  to  the  competency  should  be  taken,  57." 

as  dependant  on  whether  the  expert  has  heard  the  testimony,  58. 

in  particular  cases,  59. 

competency  of  physicians  to  testify,  99, 112. 

competency  of  physicians  as  to  the  nature  and  symptoms  of;  disease,. 
121,  122. 

who  are  competent  to  testify  on  the  subject  of  wounds,  123.  126. 

competency  of  experts  as  to  poison,  135. 


INDEX.  507 

COMPETENCY  OF  EXPERTS— Continued. 

competency  of  experts  as  to  blood  stains,  143. 

as  to  mental  condition,  161, 164. 

competency  of  priest  to  testify  as  to  mental  condition.  1M. 

on  questions  of  medical  science,  188,  192. 

as  to  diseases  of  animals,  192,  194. 

who  are  qualified  to  testify  as  experts  in  foreign  laws.  214,  220. 

in  nautical  matters,  229,  235. 

in  railroad  matters.  236,  245. 

locomotive  engineers,  236. 

conductors  of  trains,  238. 

brakemen  of  trains,  239. 

mail  agent  of  train,  240. 

officers  of  railroad  companies  as  to  management  of  trains,  240. 

employees  of  railroad  companies  as  to  management  of  trains,  240r 

243. 

different  persons  who  are  familial  with  the  subject  of  railroads,  24S. 
experienced  railroad  men  as  to  speed  of  train,  243,  244. 
in  insurance  matters,  245,  250. 
civil  engineers,  251.  253. 
surveyors,  253. 

millers  and  mill-wrights,  256,  258. 
machinist,  257. 
mechanics,  261. 
masons,  263. 

farmers  and  gardeners,  263,  266. 
cattlemen,  266,  286. 
painters  and  photographers,  268. 
lumber  men,  268,  269. 

in  patent,  trade-mark  and  copyright  cases,  270. 
business  men  as  to  usage  of  trade,  271,  272. 
as  to  technical  terms  and  unusual  words,  273,  276. 
to  make  translation  from  foreign  language,  276. 
in  miscellaneous  cases,  277,  284. 

non-professional  witnesses  as  to  handwriting,  286.  291. 
as  to  handwriting,  292,  298. 
in  writing,  a?  governed  by  bias,  298. 
as  to  the  nature  and  quality  of  ink,  306,  309. 
as  to  counterfeit  bank  notes,  344. 
on  questions  of  value,  351,  352. 
on  questions  of  value,  must  first  be  shown,  356,  361. 
competency  of  witnesses  as  to  value  in  particular  cases,  361.  366. 
as  to  value  of  real  estate,  371,  376. 
as  to  the  value  of  personal  property,  377. 
as  to  value  of  services  generally,  378,  380. 
as  to  value  of  legal  services,  380,  383. 
as  to  value  of  services  of  physicians  and  nurses,  383,  386. 
as  to  value  of  annuities,  386,  388. 
as  to  the  value  of  foreign  currency  and  negotiable  securities,  3< 


508  I  XL)  EX. 

COMPULSORY  EXAMINATION    OF    THK    PERSON. 

See  EXAMINATION  OF  THE  PERSON. 
CONCLUSIONS  OF  FACT, 

are  to  be  drawn  by  the  jury,  6. 

expert  cannot  draw  from  the  evidence,  61,  62. 

CONDUCT, 

opinions  as  to,  11,  12. 

CONDUCTOR, 

person  beitg  thrown  from  car,  28. 

of  train,  as  an  expert,  236. 

opinions  of,  as  to  sparks,  237. 

opinions  of,  as  to  duties  of  engineer,  238. 

opinions  of,  as  to  duties  of  brakemen,  238. 

as  to  ties,  238 . 

stoppage  of  train,  238. 

turning  over  of  a  car,  239. 

CONFIDENTIAL  COMMUNICATIONS, 

opinions  based  on,  when  made  in  professional  confidence.  105,  108. 
statutory  provisions  on  this  subject  considered,  108,  111. 
partial  waiver  of  the  privilege,  111. 

CONNECTICUT, 

test  as  to  the  admissibility  of  expert  testimony  in,  23. 

CONSTRUCTION, 

of  written  foreign  law,  expert  testimony  as  to,  212. 

CONTRACTOR, 

opinion  of,  as  to  sufficiency  of  culvert,  245. 
employment  of  architect,  262. 
value  of  house,  359. 

COPYRIGHT, 

opinions  of  experts  in  cases  of,  270. 

COSTS, 

taxing  expense  of  services  of  an  expert  as,  441,  442. 

COUNTERFEIT, 

detection  of  counterfeit  bank  notes,  344. 
who  are  experts  as  to  counterfeit  bank  notes,  344. 
the  regulation  by  statute  as  to  experts  on  counterfeit  bank  note*, 
346,  347. 

COUNTY  CLERK, 

opinion  of,  298. 

COUNTY  COMMISSIONER, 

us  a  witness  as  to  value,  375. 

COURTS.     See  also  APPELLATE  COURT;   TRIAL. 
determines  competency  of  non-professional  witness,  7,  8. 
must  determine  as  to  the  admissibility  of  expert  testimony,  27. 


1NDKX.  509 

COURTS— Continued. 

must  determine  competency  of  the  expert,  3!i. 

discretion  of,  in  passing  on  competency  of  witness,  53,  54,  55. 

whether  competency  of  witnesses  can  be  reviewed  in  appellate  court, 

54. 

instructing  jury  as  to  hypothetical  evidence,  77. 
having  admitted  expert  to  testify,  opposing  proof  is  for  jury,  86. 
excluding  experts  from  the  court  room  during  the  examination  of 

witnesses,  !)0. 

can  limit  number  of  experts,  91. 

right  to  order  examination  of  person  in  impotency,  171,  176,  181. 
of  what  laws  courts  take  judicial  notice,  196, 197,  273,  393. 
of  what  laws  courts  do  not  take  judicial  notice,  198,  200. 
discretion  of,  as  to  the  proof  by  experts  of  the  written  law,  210, 211. 
whether  the  question  of  foreign  law  is  for  the  court  or  jury,  '225. 
construction  of  writings,  are  questions  for,  255,  270,  274,  277. 
defines  the  meaning  of  words,  273. 

as  determining  standards  of  comparison  of  writings,  330. 
the  right  of,  to  express  an  opinion  on  the  facts,  443,  446. 
the  right  of,  to  give  cautionary  instructions,  446. 
instructions  as  to  the  weight  of  the  testimony  of  an  accomplice,  447. 

CREDIBILITY   OF   EXPERTS.     See   also    WEIGHT   OF 

EXPERT  TESTIMONY. 
is  a  question  for  the  jury,  486. 
what  it  depends  upon,  487. 

right  of  jury  to  exercise  independent  judgment,  487. 
instructions  as  to,  487, 488. 

CRIMINAL  LAW  AtfD  PROCEDURE, 

compulsory  examination  of  the  person  in  criminal  cases,  176,  181. 

CROSS-EXAMINATION, 

on  questions  of  competency,  whether  must  be  allowed,  41,42. 

can  test  and  impeach  skill  on,  42,  83,  86. 

error  in  hypothetical  question  cured  by,  68. 

the  hypothetical  question  on  the,  79. 

witness  cannot  be  asked  how  he  regards  himself  as  an  expert,  86. 

general  rules  as  to,  87,  89. 

rule  in  this  country  as  to  extent  of,  88. 

English  rule  as  to  extent  of,  88. 

what  questions  may  be  asked  on,  88,  89. 

right  on,  of  comparison  of  writings  with  fictitious  specimens,  342, 

343. 
whether  scientific  books  can  be  used  for  purposes  of  contradiction 

on,  410. 

CURRENCY, 

Talue  of,  388. 


510  INDEX. 

CUSTOM   AND    USAGE.     See  also  USAGE    OF   TRADB; 
USAGE  OF  COURTS. 

opinions  as  to,  271. 
DAMAGES, 

inadmissibility  of  opinions  as  to  measure  of  damages,  18. 

compulsory  examination  of  the  person  in  actions  for,  181. 

amount  of,  resulting  from  a  particular  transaction  not  a  matter  of 
testimony,  367,  368. 

compilation  of  the  statutes  as  to  the  proof  of  damages  resulting 

from  a  particular  transaction,  369,  370. 
DEATH, 

opinions  by  a  physician  as  to  the  cause  of,  37,  119.  120. 

DECLARATIONS, 

opinions  of  physicians  based  in  part  on,  113. 
of  pain,  opinion  based  on,  117. 
of  persons,  as  evidence  of  boundaries,  256. 
DEFINITION, 

of  the  term  expert,  1,  3. 

of  the  terms  "science"  and  "art,"  24. 

of  the  meaning  of  words  as  given  by  the  court  to  the  jury,  273. 

DELAWARE, 

discretion  of  the  court  in,  as  to  the  proof  by  experts  of  written  law, 

211. 

weight  of  medical  expert  testimony  in,  474. 
DETECTIVES, 

opinions  of,  30. 

DISCRETION, 

of  an  infant,  opinions  concerning  the,  170. 
DISEASE, 

nature  and  symptoms  of,  opinions  as  to,  121. 

DISTANCE, 

opinions  as  to,  12. 

DIVORCE, 

for  impotency,  examination  of  the  person  by  experts  in  cases  of,  171. 

DOWER, 

admissibility  of  tables  for  computing  potential  right  of,  387. 

DRIVER, 

of  stage-coach,  whether  careful  and  prudent,  16. 

of  horses,  opinions  of,  as  to  habits  and  peculiarities  of  horges,  281 . 

DROVER, 

opinions  of,  as  to  value  of  cattle,  364. 

DURATION  OF  TIME, 

opinion  as  to,  12. 


IXDKX.  .")!  1 

ENGINEER.     See  also  CIVIL  ENGINEER. 

inadmissible  opinion  of,  63. 
locomotive  engineer  as  an  expert,  230. 
ENGLAND, 

statutory  provisions  concerning  comparison  of  handwriting  in,  311. 

ENGRAVEKS, 

as  experts  in  handwriting,  297. 

ETHNOLOGIST, 

opinion  of,  upon  questions  of  race,  278. 
EVIDENCE.     See  TESTIMONY. 

EXAMINATION   OF   EXPERTS.     See   also   CROSS-EX- 
AMINATION OF  EXPERTS;   EXAMINATION  OF  THE  PERSON. 

preliminary  examination  as  to  competency,  40,  42. 

mode  of  examination,  60,  63. 

the  hypothetical  question,  64,  68. 

the  form  of  the  hypothetical  question,  68,  73. 

the  hypothetical  question  not  to  be  based  on  the  opinions  of  other 

experts,  74. 

when  questions  need  not  be  hypothetical,  74,  77. 
instructions  to  the  jury  concerning  testimony  based  on  hypothet- 
'  ical  questions,  77. 

questions  to  experts  should  not  embrace  questions  of  law,  80. 
questions  to  experts  as  to  particular  cases,  81. 
expert  cannot  be  asked  for  an  opinion  on  facts  not  stated,  82. 
matters  pertaining  to  the  examination  of  experts,  83,  87. 
evidence  should  be  confined  to  the  points  in  issue,  87. 
general  rules  governing  the,  87,  89. 
examination  and  cross-examination  must  relate  to  the  facts  in  issue, 

88. 
excluding  experts  from  the  court  room  during  the  examination  of 

witnesses,  90. 

right  of  the  court  to  limit  the  number  of  expert  witnesses,  91. 
by  whom  experts  are  selected,  92,  97. 
proper  questions  concerning  blood  stains,  144. 
form  of  question  as  to  mental  condition,  164. 
form  of  question  as  to  testamentary  capacity,  165. 
proper  mode  of  examining  medical  witness  on  subject  of  insanity, 

166. 

form  of  question  as  to  insanity  in  criminal  trial,  166. 
to  determine  impotency,  171-175. 
as  to  foreign  law,  201. 
as  to  handwriting,  299-304. 

as  to  competency  as  experts  in  handwriting,  307. 
mode  of,  by  comparison  with  handwriting,  330-333. 
mode  of,  by  comparison  with  photographic  copies,  333-338. 
mode  of,  by  comparison  with  letterpress  copies,  338-341. 


512  INDEX. 

EXAMINATION  OF   KXPEKTS— Continued, 
to  determine  competency  as  to  value,  356-361. 
form  of  question  to  expert  as  to  the  amount  of  damages    resulting 

from  a  particular  transaction,  366-371. 
right  of  the  witness  to  refer  to,  or  cite  standard  authorities,  401'. 

EXAMINATION  OF  THE  PERSON, 

in  cases  of  impoteccy,  171-175. 

when  compulsory  examination  of  the  person  for  impotency  should 

be  made,  173. 

summoning  experts  to  assist  in  determining  the  proper  interroga- 
tories in  examination  of  the  person,  174. 
to  determine  impotenry,  structural   defect  as  a  subject  of  inquiry, 

175. 

defraying  the  expenses  of  the  examination  by  experts,  176. 
compulsory  examination  in  criminal  cases,  176-181. 
compulsory  examination  in  action  for  damages,  181-185. 
compulsory  examination  of  the  person  in  action  for  injury  to  char- 
acter, 185. 

refusal  to  be  examined  by  a  particular  expert  who  is  personally  ob- 
noxious, 185. 
EX  PARTE  INVESTIGATION'S, 

admissibility  of  the  testimony  of  experts  who  have  made,  35-37. 
EXPERT.  See  also  ADMISSIBILITY  OF  EXPERT  TESTI- 
MONY ;  COMPENSATION  OF  EXPERTS  ;  COMPETENCY  OF 
EXPERTS;  CREDIBILITY  OF  EXPERTS;  EXAMINATION 
OF  EXPERTS  ;  OPINION  EVIDENCE  ;  MEDICAL  EXPERT  ; 
PHYSICIAN  AND  SURGEON. 

the  term  expert  defined,  1,  3. 

who  is  an,  2,  3. 

the  competency  of,  38  59. 

examination  of  experts,  60-97. 

excluding  from  the  court  room  during  the  examination  of  witnesses. 

90. 

right  of  the  court  to  limit  the  number  of,  91. 
by  whom  experts  are  selected,  92-97. 
testimony  of,  in  medicine,  surgery  and  chemistry,  98-194. 
detection  of  poison  by,  132-139. 
testimony  of,  on  the  subject  of  blood,  139-145. 
testimony  of,  on  the  subject  of  hair,  146. 
testimony  of,  in  malpractice  cases,  148-150. 
testimony  of,  in  cases  of  rape,  150-153. 
testimony  of,  in  cases  of  abortion,  154. 
testimony  of,  as  to  mental  condition,  161-164. 
determination  of  the  question  of  impotency  by,  171-176. 
refusal  to  be  examined  by  a,  who  is  personally  obnoxious,  185. 
physicians  as,  in  miscellaneous  cases,  186,  187. 


INDEX.  513 

EXPERT— Continued. 

in  the  diseases  of  animals,  192-194. 

the  law  as  a  subject  for  the  testimony  of,  195. 

testimony  of,  in  the  science  of  law,  195-228. 

of  what  laws  testimony  of,  is  not  received,  196,  197. 

of  what  laws  expert  testimony  is  not  received,  198-200. 

testimony  of,  as  to  the  unwritten  law  of  a  foreign  State,  200. 

proof  by,  of  the  written  law  of  a  foreign  State,  201. 

manner  of  proof  by,  of  the  written  law  of  a  foreign  State,  205-210. 

proving  the  written  law  in  the  discretion  of  the  court  by  the  testi- 
mony of,  210. 

testimony  of,  as  to  the  construction  and  interpretation  of  written 
law,  312. 

who  are  qualified  to- testify  as,  in  foreign  laws,  214-220. 

where  knowledge  of  the  foreign  law  must  have  been  acquired,  221. 

right  of,  to  cite  text-books,  decisions  and  codes  as  to  foreign  law, 
223. 

as  to  usage  and  practice  of  courts  of  another  State,  227. 

as  to  the  duties  of  an  attorney  as  between  himself  and  his  client, 
227. 

testimony  of  nautical  men,  229-235. 

testimony  of,  in  the  trades  and  arts,  229-284. 

testimony  of  insurance  men,  245,  251. 

testimony  of  civil  engineers,  251-253. 

testimony  of  surveyors,  253. 

testimony  of  millers  and  mill-wrights,  253-258. 

testimony  of  machinists,  259-261. 

testimony  of  mechanics,  261-263. 

testimony  of  masons,  263. 

testimony  of  farmers  and  gardeners,  263-266. 

testimony  of  cattlemen,  266-268. 

testimony  of  painters  and  photographers,  268. 

testimony  of  lumbermen,  268,  270. 

testimony  of,  in  patent,  trade-mark  and  copyright  cases,  270. 

testimony  of  business  men  as  to  usage  of  trade,  271,  272. 

testimony  of,  as  to  technical  terms  and  unusual  words,  273-276. 

translation  by,  of  writings  from  a  foreign  language,  276. 

opinions  of,  in  miscellaneous  cases,  277-284. 

testimony  of,  in  handwriting,  285-347. 

the  basis  of  testimony  by,  concerning  handwriting,  291,  292. 

disqualification  of,  in  handwriting,  arising  from  bias,  298. 

who  are  experts  in  handwriting,  292-298. 

upon  what  subjects  experts  in  handwriting  can  testify,  299-304. 

as  to  the  nature  and  quality  of  ink,  306-309. 

comparison  of  handwriting  by,  309-344. 

who  are,  as  to  counterfeit  bank  notes,  344. 

testimony  of,  on  questions  of  value,  348,  388. 

competency  of,  on  questions  of  value,  351,  352. 

(33) 


514  INDEX. 

EXPERT— Continued. 

testimony  of,  as  to  value  of  real  estate,  371-377. 

testimony  of,  as  to  value  of  personal  property,  377. 

testimony  of,  as  to  the  value  of  services  of  physicians  and  nurses 
383-386. 

testimony  of,  as  to  the  value  of  annuities,  386-388. 

testimony  of,  as  to  the  value  of  foreign  currency  and  negotiable  se- 
curities, 388. 

right  of  the,  to  refer  to  or  cite  standard  authorities,  409. 

testimony  of,  as  contained  in  official  reports,  418. 

compensation  of,  420-442. 

the  weight  of  the  testimony  of,  443-492. 

reason  why  the  testimony  of,  should  be  received  with  caution,  448- 
451. 

cases  holding  that  testimony  of,  should  be  received  with  caution, 
451-456. 

testimony  of,  entitled  to  little  weight  in  certain  States,  458-469. 

cases  holding  that  expert  testimony  in  matters  of  medical  science  is 
of  great  value,  469-476. 

whether  the  testimony  of  physician  as  an,  as  to  mental  condition  is 
entitled  to  greater  weight  than  that  of  ordinary  witnesses,  476-480. 

weight  of  the  testimony  of  family  physician  as  an,  as  to  mental  con- 
dition, 480,  481. 

testimony  of,  is  for  the  jury,  486. 

jury  need  not  accept  the  conclusions  of  the,  486. 

the  value  of  the  opinions  of,  upon  what  depends,  490. 

opinions  of,  cannot  prevail  over  actual  facts,  490. 
EXPERT  TESTIMONY.     See  also  EXPERT;   TESTIMONY: 
ADMISSIBILITY  OF  EXPERT  TESTIMONY. 

how  far,  differs  from  opinion  evidence,  1. 

the  practice  of  admitting,  an  ancient  one,  4,  5. 

when  generally  admissible,  19-25. 

when  generally  inadmissible,  25-37. 
FARMERS, 

opinions  of,  263-266. 

condition  of  land  for  cropping,  264. 

opinion  of,  as  to  spreading  of  fires  in  clearing  land,  264. 

safety  of  wagon  loaded  with  hay,  264. 

yield  of  land  to  the  acre,  264. 

adulteration  of  milk,  265. 

quality  of  soil,  266. 

opinion  of,  as  to  value  of  cattle,  364. 
FARRIER, 

opinion  of,  193. 

FEDERAL  COURTS, 

take  judicial  notice  of  State  statutes,  198. 
comparison  by  experts  of  handwriting  in,  323. 


INDEX.  515 

FEDERAL  STATUTES, 

State  courts  judicially  take  notice  of,  197. 
FIRE, 

opinion  as  to  damage  from,  28,  30. 
FIRE-ARMS, 

opinion  as  to  wadding,  31. 

length  of  time  since  Aveapon  was  discharged,  282. 

as  to  which  barrel  had  been  discharged,  282. 

opinion  as  to  value  of,  365. 
FIREMAN, 

opinion  of,  as  to  communication  of  fire,  30. 
FLORIDA, 

rule  in,  as  to  receiving  expert  testimony  with  caution,  453. 
FISH, 

opinion  as  to  agility  of,  281. 
FOREIGN  CURRENCY, 

opinions,  as  to  the  value  of,  388. 

FOREIGN  LAW, 

as  a  subject  for  the  testimony  of  experts,  200  204. 
manner  of  proof  in  the  United  States  of  written  foreign  law,  205-210. 
expert  testimony  as  to  the  construction  and  interpretation  of,  212. 
presumption  that  foreign  law  is  unwritten,  212. 
presumption  that  the  foreign  law  remains  unchanged,  213. 
~who  are  qualified  to  testify  as  experts  in,  214-220. 
certification  of  questions  of,  to  courts  of  foreign  country,  220. 
where  knowledge  of,  must  have  been  acquired,  221. 
right  of  expert  to  cite  books,  222. 
whether  the  question  is  for  the  court  or  jury,  225. 
testimony  as  to  usage  and  practice  of  courts  of  another  state,  227. 

FRANCE, 

number  of  experts  who  maybe  examined  on  questions  of  handwriting 
in,  91. 

how  experts  are  selected  in,  92. 

submission  to  experts  of  disputed  writings  for  comparison,  309. 
FRANCHISE, 

opinion  as  to  value  of  a,  365. 
GARDENERS, 

opinions  of,  263-266. 

condition  of  land  for  cropping,  264. 

opinion  of,  as  to  the  method  of  using  fertilizers,  264. 

damage  to  garden  by  smoke,  264. 

GAS, 

expert  testimony  as  to  the  effect  of  breathing,  47. 
GAS-FITTER, 

opinion  of,  275. 


516  INDEX. 

GEOLOGIST, 

opinions  of,  as  to  existence  of  coal  seams,  278. 

GEOEGIA, 

qualification  of  expert  in,  47. 

compulsory  examination  of  the  person  in  criminal  cases  in,  179. 
statutory  provisions  concerning  comparison  of  handwriting  in,  312. 
comparison  by  experts  of  handwriting  in,  319. 

comparison  of  disputed  writing  may  be  made  with  any  writing 
proved  to  be  genuine  in.  330. 

GERMANY, 

how  experts  are  selected  in,  93. 
GOVERNMENT  EXPERTS, 

system  of  considered,  94. 
GRAZIER.  See  CATTLEMEN. 
GUNSHOT  WOUNDS, 

testimony  as  to,  127-132. 

GUNSMITH.  See  also  FIRE-ARMS. 

opinion  of,  as  to  how  far  a  gun  would  carry,  126. 

HABITS, 

of  a  person,  opinion  as  to,  10, 11. 

HAIR, 

expert  testimony  on  the  subject  of,  146. 
identification  of,  see  Appendix,  493. 

HANDWRITING.  See  also  WRITINGS. 

proof  of,  286. 

testimony  of  non-professional  witnesses  as  to,  286-269. 

under  what  circumstances  opinions  of  non-professional  witnesses 
may  be  received  as  to,  287,  288. 

when  the  opinions  of  non-professional  witnesses  as  to,  are  inadmis- 
sible-, 289-291. 

the  basis  of  expert  testimony  concerning,  291,  292. 

who  are  experts  concerning,  292-298. 

disqualification  of  expert  in,  arising  from  bias,  298. 

upon  what  subjects  experts  in  can  testify,  299-304. 

testimony  as  tj  nature  and  quality  of  ink,  304-306. 

who  are  qualified  to  testify  as  to  nature  of  ink,  306-309. 

comparison  by  experts  of  writings  in  juxtaposition,  309-311. 

statutory  provisions  concerning  comparison  of  handwriting,  311-317. 

proof  under  the  statutes  as  to  comparison  of  handwriting,  314-317. 

comparison  by  experts  in  the  absence  of  statutory  provisions,  317-32G. 

comparison  by  experts  of  handwriting  in  juxtaposition  not  allowed 
in  some  of  the  States,  323-326. 

effect  of  the  introduction  of  specimens  of  handwriting  for  the  pur- 
pose of  comparison  not  admitted  to  be  genuine,  327. 

right  of  comparison  with  writings  proved  genuine  for  the  purpose, 
327-330. 


INDEX.  .",17 

HANDWRITING— Continued. 

compilation  of  the  statutes  of  different  States  as  to  what  writings 
comparison  of  handwritings  may  be  made  with,  328,  329. 

mode  of  proof  of  when  comparison  is  allowed  with  writing  proved 
genuine  for  the  purpose,  330-331. 

expert  should  have  before  him  in  court  the  writing  compared,  332 -333. 

comparison  with  photographic  copies,  333-338, 

comparison  with  letterpress  copies,  338-339. 

comparison  with  writings  made  on  the  trial,  339,  340. 

testing  accuracy  of  expert  in,  342. 

writings  admissible  for  comparison  in  orthography,  341. 

comparison  of  writings  with  fictitious  specimens  on  cross-examina- 
tion, 342-344. 

HEALTH, 

opinion  of  non-professional  witnesses  as  to,  11. 

HIGHWAY, 

opinion  as  to  safety  and  sufficiency  of,  31,  32. 

HORSES, 

opinion  as  to  diseases  of,  193. 

opinion  as  to  unsoundness  of,  194. 

opinion  as  to  objects  calculated  to  frighten,  281. 

HYPOTHETICAL  QUESTION, 

in  the  examination  of  experts,  64-68. 

the  form  of  the,  68-73. 

not  to  be  based  on  the  opinions  of  other  experts,  74. 

when  questions  need  not  be  hypothetical,  74-77. 

instructions  to  the  jury  concerning  testimony  based  on,  77. 

on  the  cross-examination  of  experts,  79. 

IDENTIFICATION, 

of  hair,  see  Appendix,  494. 
of  blood,   see  Appendix,  496. 

IDENTITY, 

opinion  evidence  as  to,  10. 

ILLINOIS, 

compulsory  examination  of  the  person  in  action  for  damages  in,  184. 
construction  and  interpretation  of  written  foreign  law  in.  212. 
opinions  of  non-professional  witnesses  in  as  to  foreign  law.  217. 
comparison  by  experts  of  handwriting  in  juxtaposition,  not  allowed 

in,  325. 

statutory  regulation  as  to  experts  upon  counterfeit  bank  notes,  346. 
admissibility  of  opinions  and  statements  in  books  of  science  in.  399- 

400. 

right  of  counsel  to  read  from  scientific  books  in,  417. 
extra  compensation  to  experts  in,  436. 
weight  of  the  testimony  of  physicians  in,  as  to  mental  condition,  477. 


518  INDEX. 

IMPOTENCY, 

examination  of  the  person  in  cases  of,  171. 

who  should  be  appointed  to  make  examination  in  cases  of,  172. 

compulsory  examination  of  the  person  to  determine,  173. 

INDIANA, 

how  far  competency  of  expert  a  subject  of  review  by  appellate  court 

in,  54. 

exclusion  of  answer  to  hypothetical  question  from  the  jury  in,  78. 
compulsory  examination  of  the  person  in  actions  for  damages  in,  184. 
comparison  by  experts  of  handwriting  in,  319. 
cross-examination  of  expert  as  to  handwriting  by  use  of  fictitious 

specimen,  343. 

statutory  regulation  as  to  experts  upon  counterfeit  bank  notes,  346. 
aJmissibility  of  opinions  and  statements  in  books  of  science  in,  399, 

400. 

compensation  of  experts  in,  421. 
rule  as  to  extra  compensation  to  experts  in,  431. 
tests  as  to  weight  of  expert  testimony  in,  457. 
weight  of  the  testimony  of  physicians  in,  as  to  mental  condition, 

477. 

INFANT, 

opinions  concerning  the  discretion  of  an,  170. 

INJUEY, 

proximate  cause  of  an,  is  for  the  jury,  15. 

evidence  of  future  consequences  expected  to  follow  an  injury,  122. 

INK, 

whether  two  documents  were  written  with  the  same  ink,  300. 
genuineness  of  writings  as  determined  by  the  nature  of  the,  304. 
micro-chemical  examination  of,  304. 
qualifications  of  experts  in,  306-309. 

INNKEEPER, 

opinion  of,  as  to  safety  of  money  in  locked  trunk,  30. 

INSANITY.     See  also  MENTAL  CONDITION. 
improper  form  of  question  to  expert  as  to,  62-75. 
non-professional  opinion  evidence  as  to,  157.. 
opinions  of  medical  experts  on,  162-164. 
form  of  question  as  to,  164. 

who  are  competent  to  testify  as  experts,  164-166. 
form  of  question  for  expert  in  criminal  trial,  166. 
evidence  bearing  on  question  of,  167-170. 
admissibility  of  acts,  conduct  and  habits  as  evidence  of,  169. 
whether  admissible  to  give  in  evidence  particular  acts  of  madness, 

169. 

evidence  of  treatment  in  hospital,  169. 
paralysis  as  evidence  of,  170. 


INDKX.  519 

INSPECTION  OF  THE  PERSON.     See  EXAMINATION  OF 

THE  PERSON. 
INSTRUCTIONS.     See  also  TRIAL  ;  COURT. 

to  the  jury  concerning  testimony  based  on  hypothetical  questions, 

77. 

the  right  of  court  to  express  an  opinion  on  the  facts,  443-446. 
right  of  court  to  give  cautionary  instructions  in  certain  cases.  44*;- 

448. 

INSURANCE, 

competency  of  experts  as  to,  245,  251. 

competency  of  experts  as  to  materiality  of  concealed  facts  in  appli- 
cation for,  245. 

competency  of  experts  as  to  increase  of  risk,  249. 

competency  of  experts  as  to  increase  of  premiums,  250. 
INTENTION, 

when  the  subject  of  testimony,  18. 
INTEREST  TABLES, 

admissibility  of,  in  evidence,  391. 
INTERPRETATION, 

by  expert  testimony,  of  written  foreign  law,  212. 
INTERROGATORIES , 

summoning  experts  to  determine  the,  in  cases  of  impotency,  174. 

INTOXICATED, 

opinion  as  to  whether  a  person  was,  10. 

IOWA, 

compulsory  examination  of  the  person  in  criminal  cases  in,  ISO. 

competency  of  experts  as  to  handwriting  in,  295. 

teacher  of  penmanship  as  an  expert  on  the  nature  and  quality  of  ink, 
308. 

statutory  provisions  concerning  comparison  of  handwriting  in,  312. 

proof  under  the  statute  as  to  comparison  of  handwriting  in,  315. 

comparison  of  disputed  writing  may  be  made  with  any  writing 
proved  to  be  genuine  in,  330. 

rule  in,  as  to  competency  of  experts  on  questions  of  value,  357. 

opinion  as  to  value  by  witness  not  familiar  with  the  identical  arti- 
cle, 365. 

IRON, 

investigations  as  to  the  quality  of,  52. 

JUDICIAL  NOTICE, 

of  what  laws  courts  take  judicial  notice,  195,  196. 

of  what  laws  courts  do  not  take  judicial  notice,  198-200. 

of  the  meaning  of  words  and  idioms,  273. 

JURY.     See  also  TRIAL. 

question  of  opinion,  when  a  question  for  the  jury  to  determine,  13, 
14,  15. 


520  INDEX. 

JURY — Continued. 

proximate  cause  of  an  injury,  is  for  the,  15. 

what  amounts  to  negligence  is  ordinarily  for  the,  15. 

when  competent  to  form  opinions,  expert  testimony  is  not  admissi 
ble,  26. 

competency  of  experts  cannot  be  referred  to,  39,  40. 

instructions  to  the,  concerning  testimony  based  oh  hypothetical 
questions,  77. 

inspection  of  the  person  by,  177. 

whether  the  question  of  foreign  law  is  for  the  court  or  jury,  225. 

whether  the  amount  of  damages  resulting  from  a  particular  trans- 
action is  for  the  jury,  367. 

reading  scientific  books  to,  as  evidence,  391. 

as  argument,  411. 

province  of  the,  as  to  the  weighing  of  testimony,  443-448. 

need  not  accept  the  conclusions  of  the  expert  witnesses,  486. 

the  weight  of  testimony  is  for  the,  486. 

the  right  and  duty  of  the,  as  to  expert  testimony,  486-492. 

error  to  instruct,  that  they  may  wholly  disregard  the  testimony  of 
experts,  487. 

may  bring  to  the  consideration  of  the  question  such  general  practi- 
cal knowledge  as  they  possess,  487. 

in  what  cases  the  jury  must  accept  the  testimony  of  the  expert,  490. 

upon  what  the  value  of  expert  testimony  depends,  490. 

opinions  of  experts  cannot  prevail  over  actual  facts,  490. 

expert  testimony  of  no  value  when  based  on  the  testimony  of  wit- 
nesses rejected  by  the,  490. 

not  required  to  decide  a  case  in  favor  of  the  opinions  expressed  by 
a  greater  number  of  the  experts,  492. 

KANSAS, 

three  experts  necessary  to  establish  genuineness  of  disputed  writ- 
ing in,  91. 

comparison  by  experts  of  handwriting  in,  319. 
doctrine  of,  as  to  the  introduction  of  handwritings  for  comparison 

not  admitted  to  be  genuine,  327. 

statutory  regulation  as  to  experts  upon  counterfeit  bank  notes,  346. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  400. 
whether  expert  testimony  should  be  received  with  caution  in,  458. 

KENTUCKY, 

discretion  of  the  courts  in,  as  to  the  proof  by  experts  of  written  law, 

211. 

comparison  by  experts,  of  handwriting  in,  319. 
comparison  by  experts,  of  handwriting  in  juxtaposition,  not  allowed 

in,  325. 

admissibility  in  evidence  of  almanac  in,  393. 
KLEPTOMANIA, 

expert  testimony  as  to,  161. 


INDKX.  521 

LAW.     See  also  FOREIGN  LAW;  JIDICIAL  NOTICE. 

expert  testimony  in  the  science  of,  195,  228. 

of  what  laws  courts  take  judicial  notice,  196,  198. 

of  what  laws  courts  do  not  take  judicial  notice,  198,  200. 

proof  of  the  unwritten  law  of  a  foreign  State,  200. 

proof  in  England  by  experts  of  the  written  law  of  a  foreign  State, 

201. 
manner  of  proof  in  the  United  States  of  the  written  law  of  foreign 

States,  205,  210. 

proving  the  written  law  in  the  discretion  of  the  court,  210.  212. 
testimony  of,  as  to  the  construction  and  interpretation  of  written, 

212. 

presumption  that  law  is  unwritten,  212. 
presumption  that  the,  remains  unchanged,  213. 

LAWYER.     See  also  ATTORNEY  AND  CLIENT. 
as  experts  in  the  science  of  law,  196. 
competency  of,  to  testify  as  to  foreign  law,  214. 
whether  witness  must  be,  to  testify  to  foreign  law,  219,  221. 
where  knowledge  of  law  must  have  been  acquired,  221. 
right  of,  to  cite  text  books,  decisions  and  codes,  22-J. 
testimony  of,  as  to  usage  and  practice  of  courts,  227. 
opinions  of,  as  to  the  powers  and  obligations  of,  to  clients,  2-_'7. 
as  expert  in  handwriting,  298. 

expert  testimony  as  to  the  value  of  legal  services,  380,  383. 
whether,  may  read  from  scientific  books  in  argument,  417. 

LEADING  QUESTIONS, 

should  not  be  asked  on  the  direct  examination,  87. 
LEGAL  OBLIGATION, 

opinion  on  matters  of,  18. 

LETTERPRESS  COPIES, 

comparison  with,  in  the  proof  of  handwriting,  338,  339. 

LIBEL  AND  SLANDER, 

opinion  as  to  intended  meaning  of  words  used,  18. 

LITERARY  PRODUCTION, 

opinions  of  an  author  as  to  value  of,  361. 

LUMBERMEN, 

opinion  of,  as  to  the  amount  of  logs  could  be  delivered  per  day,  268. 

proper  manner  of  floating  logs,  269. 

quality  of  lumber,  269. 

whether  a  raft  was  properly  moored,  269. 

MACHINERY.     See  MACHINIST. 

MACHINIST, 

whether  machinery  constructed  in  workman-like  manner,  76,  259. 
need  not  be  a  machinist  to  testify  as  an  expert  as  to  machinery, 
256,  260. 


522  INDEX. 

MACHINIST— Continued. 

opinion  as  to  how  much  work  a  machine  can  do,  260. 

in  what  way  machinery  operates,  25S,  261. 

opinion  as  to  the  merits  of  machinery,  259. 

expert  testimony  of,  259,  261. 

testimony  of  expert  as  to  the  construction  of  machinery,  259. 

opinions  of,  as  to  the  value  of  machinery,  363. 
MAINE, 

competency  of  witness  on  review  in  appellate  court  in,  54. 

discretion  of  the  courts  in,  as  to  the  proof  by  experts  of  written 
law,  211. 

comparison  by  experts  of  handwriting  in,  320. 

statutory  regulation  as  to  experts  upon  counterfeit  bank  notes,  346. 

admissibility  of  opinions  and  statements  in  books  of  science  in.  401. 
MALPRACTICE, 

expert  testimony  in  cases  of,  148. 

expert  testimony  as  to  the  meaning  of  the  word,  274. 
MAP, 

as  to  the  use  of  before  the  jury  by  expert,  256. 

MARKET  REPORTS, 

as  evidence  of  value,  350. 
MARKET  VALUE, 

of  land,  testimony  as  to  the,  376. 

MARRIAGE, 

a  priest  as  an  expert  on  the  foreign  law  of,  216. 

MARYLAND, 

principle  as  to  the  competency  of  experts  in,  45. 

attorney  as  an  expert  on  foreign  law  in,  214. 

comparison  by  experts  of  handwriting  in  juxtaposition,  not  allowed 

in,  325. 

admissibility  in  evidence  of  almanac  in,  393. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  401. 

MASONS, 

testimony  of,  263. 

MASSACHUSETTS, 

competency  of  expert,  how  far  subject  of  review  by  appellate  court 

in,  55. 

examination  of  expert  in,  62. 

opinions  of  ordinary  witnesses  as  to  mental  condition  in,  159. 
evidence  admissible  upon  the  question  of  insanity  in,  169. 
discretion  of  court  in,  as  to  the  proof  by  experts  of  written  law,  211. 
whether  the  question  of  foreign  law  is  for  the  court  or  jury  in,  226. 
comparison  by  experts,  of  handwriting  in,  320. 
competency  of  witnesses  as  to  value  of  real  estate  in,  375. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  402. 
right  of  counsel  to  read  from  scientific  books  in,  413. 


IM>KX.  523 

MEASURE  OF  DAMAGES.  See  DAMACKS. 
MECHANICS, 

opinions  of,  261-263. 

opinions  of,  as  to  value  of  machinery,  363. 
MEDICAL  BOOKS, 

admissibility  of  opinions  and  statements  in,  in  England,  394. 
admissibility  of  opinions  and  statements  in,  in  the  United  States, 

395-404. 

reason  why  not  received  in  evidence,  404-407. 
views  of  writers  on  medical  jurisprudence,  as  to  admissibility  of 

medical  books,  406. 

admissibility  of,  for  purposes  of  contradiction.  407-408. 
right  of  expert  to  refer  to  or  cite  authorities  from  books,  409. 
reading  from,  by  counsel  in  argument,  411-418. 
cases  denying  counsel  the  right  to  read  in  argument  from,  417. 
cases  holding  that  counsel  may  read  from,  in  argument,  417. 
opinions  of  writers  of,  as  to  additional  compensation  to  experts,  428. 

MEDICAL  EXPERTS.  See  also  PHYSICIAN  AND  SUWJEOX. 
as  to  how  far  injury  impairs  the  usefulness  of  limb,  29. 
as  to  the  possibilities  of  rape,  29. 
opinion  as  to  physical  condition,  72,  US,  !•">;.'. 
opinion  as  to  cause  of  death,  75, 119,  134, 149. 
who  are  qualified  as  such,  99-112. 
expert  testimony  in  medicine  and  surgery,  99-132. 
as  to  the  nature  and  symptons  of  disease,  121. 
future  consequences  expected  to  follow  an  injury,  122, 188. 
testimony  of,  relating  to  wounds,  123-132. 
in  the  detection  of  poison,  135. 
in  malpractice  cases,  148. 
in  cases  of  rape,  150-154. 

in  cases  of  abortion,  pregnancy  and  seduction,  154-156. 
opinions  of,  as  to  mental  condition,  161. 
evidence  bearing  on  question  of  insanity,  167-170. 
examination  of  the  person  by,  in  cases  of  ini potency.  171. 
who  should  be  appointed  to  make  examination  of  the  person  incases 

of  impotency,  172. 

the  opinions  of,  in  miscellaneous  cases,  186,  1^7. 
permanency  of  loss  of  vision,  187. 
condition  of  the  body  of  the  deceased,  187. 
questions  of  medical  practice,  187. 
condition  of  human  remains  after  burial,  1S7. 
whether  certain  diet  injurious  to  children,  187. 
premature  births,  187. 
curability  of  disease,  187. 
as  to  the  sex  of  a  skeleton,  188. 
probability  of  recovery  in  certain  conditions  if  attended  to  in  time, 

188. 


524  IXDEX. 

MEDICAL  EXPERTS— Continued. 

whether  fright  would  produce  heart  trouble,  188. 

opinions  of  non-professional  witnesses   on   questions  relating  to 

medical  science,  188, 192. 
in  diseases  of  animals,  192. 
whether  medical  treatises  can  be  cited  to  sustain  or  contradict  the 

testimony  of,  391-409. 
cases  holding  that  expert  testimony  in  matters  testified  to  by.  is  of 

great  value,  469,  476. 

MENTAL  CONDITION.     See  also  INSANITY. 
opinions  of  non -professional  witnesses  as  to,  11. 
opinion  evidence  as  to,  156. 
expert  testimony  as  to,  161,  164. 

competency  of  expert  without  personal  knowledge  of  the  case,  162. 
priest  as  an  expert  on,  163. 
form  of  question  as  to,  164. 
evidence  of  particular  acts  of  madness,  169. 
weight  of  the  testimony  of  physician  as  to,  476,  480. 

MICHIGAN, 

exclusion  of  answer  to  hypothetical  question  from  the  jury  in,  78. 
opinions  based  on  declarations  of  patient  in,  117. 
compulsory  examination  of  the  person  in  criminal  cases  in,  179. 
opinions  of  non-professional  witnesses  in,  as  to  foreign  law,  218. 
comparison  by  experts  of  handwriting  in,  320. 
photographic  copies  of  handwriting  in,  334,  335. 
the  offer  of  a  certain  sum  for  land,  as  evidence  of  its  value  in,  350. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  402. 
right  of  counsel  to  read  from  scientific  books  in,  413. 
rule  in,  as  to  the  receipt  of  expert  testimony  with  caution.  455. 
rule  as  to  expert  testimony  in,  461. 

weight  of  the  testimony  of  physician  in,  as  to  mental  condition, 
478. 

MICROSCOPIST, 

as  an  expert  on  handwriting,  301. 

as  an  expert  on  the  nature  and  quality  of  ink,  306. 

MIDWIFE, 

opinion  of,  as  to  premature  birth,  105. 
inspection  of  the  person  by,  173. 

MILLERS  AND  MILL-WRIGHTS, 

opinions  of,  as  to  skillfulness  of  work  on  a  mill,  51,  258. 

opinion  as  to  quantity  of  grain  a  mill  could  grind,  257. 

value  of  water-power  for  mill  purposes,  257. 

fitness  of  mill  site,  257. 

identity  of  wheat,  257. 

anchor  ice, 257. 

necessity  of  repairing  mill,  258. 


IXDKX.  525 

MILLERS  AND  MILL-WRIGHTS— Continued. 

capacity  of  mill-wright,  258. 

diminishing  power  of  water-wheel,  258. 

technical  terms  as  to,  270. 
MINER, 

opinions  of,  as  to  the  safety  of  a  particular  blasting  powder,  278. 
MINNESOTA, 

discretion  of  court  as  to  proof  of  written  law  in,  211. 

compensation  of  experts  in.  422. 

extra  compensation  to  experts  in,  436. 

discretion  of  courts  in,  as  to  the  proof  by  experts  of  written  law. 
211. 

comparison  by  experts  of  handwriting  in,  321. 

opinions  of  machinists  as  to  value  of  machines  in,  363. 

MISSISSIPPI, 

impeachment  of  mother's  testimony  in  prosecution  for  bastardy  in, 

34. 

comparison  by  experts  of  handwriting  in,  321. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  402. 
rule  in,  as  to  the  receipt  of  expert  testimony  with  caution,  451. 
weight  of  medical  expert  testimony  in,  470. 

MISSOURI, 

compulsory  examination  of  the  person  inaction  for  damages  in,  183. 

competency  of  experts  as  to  handwriting  in,  297. 

comparison  by  experts  of  handwriting  iu.  321. 
MORAL  OBLIGATION, 

opinion  on  matters  of,  18. 
MORALS, 

inadinissibility  of  opinions  founded  on  a  theory  of,  32. 

MORTUARY  TABLES, 

admissibility  in  evidence,  391. 
NATURAL  SCIENCE.     See  SCIEXCK. 

NAUTICAL  EXPERTS, 

opinions  as  to  seaworthiness  of  vessels,  230. 

as  to  what  caused  a  vessel  to  leak,  230. 

as  to  the  soundness  of  a  chain  table,  230. 

the  collision  of  vessels,  230. 

as  to  the  inanagement/>f  ships,  231. 

as  to  the  method  of  towing  boats,  231. 

effect  of  cross  seas,  231. 

cause  of  the  loss  of  a  vessel,  231. 

what  cargo  can  be  safely  carried,  231. 

negligence  in  mooring  a  vessel,  232. 

the  necessity  of  a  jettison,  232. 

what  would  be  the  expense  of  raising  and  repairing  a  vessel,  232. 


526  INDEX. 

NAUTICAL  EXPERTS— Continued. 

safe  place  for  carrying  cargo,  233. 

competency  of  crew,  233. 

piloting  of  a  boat,  233,  234. 

sailing  rules  and  regulations,  233,  234. 

as  to  whether  collision  might  have  been  avoided,  234. 

miscellaneous  testimony  of,  235. 
NAVIGATION.     See  NAUTICAL  EXPERTS. 
NEBRASKA, 

statutory  provision  concerning  comparison  of  handwriting  in,  313. 

comparison  of   disputed  writing  may  be  made  with  any  writing 
proved  to  be  genuine  in,  330. 

comparison  with  writings  made  on  the  trial  to  prove  handwriting, 
340. 

NEGLIGENCE, 

question  of  what  is  the  proximate  cause  of  an  injury  is  for  the  jury 

to  determine,  15. 

as  to  what  is  ordinarily  not  a  matter  of  opinion,  15. 
whether  certain  injuries  attributable  to,  16. 
compulsory  examination  of  the  person  in  actions  for,  181,  185. 

NEGOTIABLE  SECURITIES, 

value  of,  388. 
NEVADA, 

compulsory  examination  of  the  person  in  criminal  cases  in.  177. 

NEW  HAMPSHIRE, 

under  what  circumstances  the  testimony  of  experts  may  be  received 

in,  22. 

general  practitioner  an  expert  on  special  subject  in,  102. 
opinions  of  non-professional  witnesses  in,  as  to  foreign  law,  216. 
comparison  by  experts  of  handwriting  in,  321. 
law  of,  providing  for  expert  testimony  in  cases  of  value,  352. 
admissibility  of  opinions  and  statements  in  books  of  science  in,  402. 

NEW  JERSEY, 

manner  of  proof  as  to  written  laws  in,  210. 

opinions  of  non-professional  witnesses  in,  as  to  foreign  law,  218. 
statutory  provision  concerning  comparison  of  handwriting  in,  313. 
comparison  by  experts  of  handwriting  in  juxtaposition,  not  allowed 

in,  326. 
comparison  of  disputed  writing  may  be  made  with  any  writing 

proved  to  be  genuine  in,  330. 
rule  as  to  weight  of  expert  testimony  in,  461. 

NEW  YORK, 

rule  as  to  admissibility  of  expert  testimony  in,  23,  24. 
what  constitutes  au  expert  in,  45. 
form  of  hypothetical  question  in,  70. 
non-professional  opinions  as  to  mental  condition  in,  158. 


INDEX.  ~)'2t 

NEW  YORK— Continued. 

statutory  provisions  concerning  comparison  of  handwriting  in,  313. 

proof  under  the  statute  as  to  comparison  of  handwriting  in,  31."). 

comparison  by  experts  of  hand  wilting  in,  321. 

comparison  of  disputed  writing  may  be  made  with  any  writing 
proved  to  be  genuine  in,  330. 

opinions  of  carpenter  in,  as  to  value  of  lumber,  362. 

admissibility  of  opinions  and  statements  in  books  of  science  in.  lo-j. 

rule  in,  as  to  the  receipt  of  expert  testimony  with  caution,  453. 

cases  in,  in  which  physicians  may  testify,  notwithstanding  prohibit- 
ory statute,  109. 

layman  cannot  express  opinions  as  to  mental  condition  in,  158. 

proper  mode  of  examining  medical  witness  on  subject  of  insanity,  167. 

compulsory  examination  of  the  person  in  criminal  cases  in,  17'.). 
NON-PROFESSIONAL    WITNESS.     See   OPINION   EVI- 
DENCE. 
NORTH  CAROLINA, 

compulsory  examination  of  the  person  in  criminal  cases  in,  177. 

qualification  of  chemist  in,  to  testify  as  to  the  nature  and  quality  of 
ink,  307. 

comparison  by  experts  of  handwriting  in,  322. 

admissibility  of  opinions  and  statements  in  books  of  science  in,  403. 

rio-ht  of  counsel  to  read  from  scientific  books  in,  413. 

o 

compensation  of  experts  in,  422. 

weight  of  medical  expert  testimony  in,  470. 

NURSERYMEN, 

opinions  of,  as  to  questions  of  value,  359. 

NURSES, 

opinion  of  physician  founded  on  declarations  of,  113. 

opinion  of,  as  to  premature  birth,  155. 

expert  testimony  as  to  the  value  of  services  of,  383. 

OBSCENE  PUBLICATION, 

expert  testimony  as  to  what  is,  418. 

OFFICIAL  REPORTS, 

testimony  of  experts  contained  in,  418. 

OHIO, 

opinions  of  ordinary  witnesses  in,  as  to  mental  condition,  I..1.'. 

comparison  by  experts  of  handwriting  in,  322. 

right  of  counsel  to  read  from  scientific  books  in,  415. 

rule  in,  as  to  the  receipt  of  expert  testimony  with  cautiot.  1 VJ. 

OPINION  EVIDENCE, 

how  far  differs  from  expert  testimony,  1. 
of  non-professional  witnesses,  6. 

difference  between  what  is  a  fact  and  what  is  an  opinion,  7. 
determination  of   preliminary    questions  before  non-professional 
evidence  admissible,  7. 


528  INDEX. 

OPINION  EVIDENCE— Continued. 

not  admissible  without  personal  knowledge  of  the  facts,  8. 

opinions  of  non-professional  witnesses  in  oases  of  necessity,  9. 

concerning  the  age  of  a  person,  10. 

of  the  identity  of  a  person  or  thing,  10. 

concerning  the  appearance  of  a  person,  10. 

concerning  the  health  and  physical  and  mental  condition  of  a  per- 
son. 11. 

concerning  a  person's  habits,  11. 

concerning  a  person's  actions,  11. 

concerning  a  person's  character,  11. 

concerning  a  person's  reputation,  12. 

various  matters  in  which  the  opinions  of  ordinary  witnesses  are  re- 
ceived, 12. 

the  inadmissibility  of  opinion  evidence,  13. 

question  of  negligence  how  far  a  matter  of  opinion,  15. 

of  a  person  who  is  neither  a  physician  nor  a  surgeon,  105. 

as  to  mental  condition,  156,  161. 

as  to  mental  condition  of  testator,  156,  158. 

opinions  concerning  the  discretion  of  a  person  of  non-age,  170. 

opinions  of  non-professional  witnesses  on  questions  relating  to 
medical  science,  188,  192. 

in  what  cases  opinions  of  non-professional  witnesses  not  admis- 
sible on  questions  of  medical  science,  191. 

opinions  of  non-professional  witnesses  as  to  foreign  law,  216,  217. 

opinion  of  non-professional  witnesses  as  to  handwriting,  286,289. 

under  what  circumstances  may  be  received  as  to  handwriting,  287, 
288. 

when  the  opinions  of  non-professional  witnesses  as  to  handwriting 
are  inadmissible,  289,  291. 

on  questions  of  value,  348. 

opinions  of  ordinary  witnesses  on  questions  of  value,  352,  353. 

when  the  opinions  of  witnesses  on  questions  of  value  are  inadmis- 
sible, 354,  356. 

as  to  the  amount  of  damages  resulting  from  a  particular  transac- 
tion, 368,  369. 

as  to  the  value  of  real  estate,  371,  377. 

OREGON, 

statutory  provision  concerning  comparison  of  handwriting  in,  314. 
PAIN, 

opinions  based  on  declarations  of,  not  admissible,  117. 
PAINTER, 

opinion  of,  as  to  quality  of  carpenter  work,  51. 

testimony  of,  268. 

PAPER.     See  also  WRITINGS. 

whether  had  been  used  as  gun-wadding,  31. 
erasure  of  ink  from,  307. 
how  made  to  appear  old,  307. 


IM.KX.  52! 

PATENT, 

testimony  of  experts  in  cases  of,  27<> 

PAVES, 

opinions  of.  as  to  the  number  of  bricks  in  pavement.  W8 
PENNSYLVANIA, 

what  constitutes  au  expert  in.  ).">. 

h«.\v  far  competem-y  of   experts  a  subject  of  review  by  appellaf 

court  in,  55. 

opinions  of  non-professional  witnesses  in,  as  to  foreign  law,  21<;,  217. 
statutory  regulation  as  to  experts  upon  counterfeit  bank  notes.  :'.47. 
Personal  knowledge  of  the  expert  as  to  value  in,  358. 
Competency  of  witnesses  as  to  value  of  real  estate  in.  374. 
admissibility  in  evidence  of  almanac  in.  :?'.M. 
weight  of  medical  expert  testimony  in.  172 

PERSONAL  PROPERTY. 

testimony  as  to  the  value  of.  377. 

PHOTOGRAPHER, 

opinions  of,  268. 

PHOTOGRAPHS, 

comparison  with  photographic  copies  by  experts,  333,  338. 
when  may  be  allowed  in  evidence,  333. 

PHYSICIAN  AND  SURGEON*.      Sec  also  MKDHM.   Bx- 

I'KIITS  :     PRIVILEGED  COMMlMCATlox  -  . 

competency  of,  to  testify  as  expert,  99, 105. 

qualification  as  governed  by  statutory  requirements  for  license,  100. 

whether  physician  to  testify  as  an  expert  should  be  a  member  of  a 
medical  society,  100. 

how  far  competency  of,  as  expert,  affected  by  the  question  of  license 
to  practice,  100. 

competency  as  expert  as  determined  by   the  system  of  medicine 
pursued, 100. 

how  far  necessary  that  he  should  have  made  a  specialty  of  the  par- 
ticular disease,  101. 

how  far  a  specialist  is  disqualified  as  au  expert.  101. 

limited  experience  of  a  general  practitioner,  102,  103. 

•  •ornpetency  of,  as  to  mental  condition  without  personal  knowledge 
of  the  case,  163. 

how  far  disqualified  as  an  expert,   because  not  actually  engaged  in 
practice,  103, 104. 

opinion  evidence   of  a  person  who  is  neither  a  physician  nor   a 
surgeon,  105. 

disqualification  arising  from  information  acquired  while  attending 
patient,  105-108. 

cases  iu  which  physician  may  testify  notwithstanding  the  prohibit- 
ory statute.  108,  111. 

(34) 


530  INDEX. 

PHYSICIAN  AND  SURGEON— Continued. 

partial  waiver  by  a  patient  of  the  privilege  prohibiting   disclosure 

by  physicians,  111,  112. 
opinions  based  on  statements  made  out  of  court  and  not  under  oath, 

113. 
opinions  of  physicians  based  in  part  on  declarations  of  patients, 

113-117. 

opinions  as  to  the  condition  of  a  patient,  118. 
opinions  as  to  the  cause  of  death,  119,  120. 
testimony  of,  as  to  the  nature  and  symptoms  of  disease,  121. 
evidence  of  future  consequences  expected  to  follow  an  injury,  122. 
medical  testimony  relating  to  wounds,  123-132. 
who  are  competent  to  testify  on  the  subject  of  wounds,  124-126. 
testimony  admissible  concerning  wounds,  132. 
may  give  an  opinion  as  to  the  means  by  which  a  wound  is  inflicted, 

127. 
may  give  an  opinion  as  to  the  natural  and  probable  result  of  wounds, 

127. 

may  testify  whether  wound  sufficient  to  cause  death,  130. 
may  express  an  opinion  as  to  the  time  when  a  wound  was  inflicted, 

131. 
may  give  an  opinion  as  to   the  direction  from  which  a  blow  was 

delivered,  131. 

expert  testimony  in  malpractice  cases,  148. 
expert  testimony  in  cases  of  rape,  150-153. 

expert  testimony  in  cases  of  abortion,  pregnancy  and  seduction,  Io4. 
opinions  of,  as  to  mental  condition,  161-164. 
examination  of  the  person  in  cases  of  impotency,  171. 
who  should  be  appointed  to  make  examination  of  the  person  in  cases 

of  impotency,  173. 

yeterinary  surgeon  as  expert  in  the  diseases  of  animal.*.  192-194. 
as  an  expert  on  the  meaning  of  the  word  ''malpractice,''  274. 
expert  testimony  as  to  the  services  rendered  by,  383. 
whether  medical  treatises  can  be  cited  to  sustain  or  contradict  the 

testimony  of,  391-409. 

cannot  be  compelled  to  make  post-mortem  examination  without  spe- 
cial compensation,  423. 

special  compensation  of,  when  testifying  as  an  expert,  424-439. 
weight  of  the  testimony  of,  469-481. 
weight  of  testimony  of,  as  to  mental  condition,  476-480. 
weight  of  the  testimony  of  a  family  physician  as  to  mental  condition, 

480-481. 

PICTURE, 

opinions  of  artist  as  to  value  of,  302. 
PILOT, 

opinion  of,  233. 


INDEX.  531 

POISON, 

medical  man  without  experience  as  to  poisons  cannot  be  an  expert 

on  that  subject,  102. 
detection  of.  by  experts,  132. 
who  are  experts  in  the  detection  of  poison.  135. 
chemical  analysis  of,  when  not  necessary,  135. 
chemical  analysis  of  contents  of  stomach,  136-138. 
order  of  research  in  analysis  for,  138. 

POSTMAKK. 

genuineness  of,  how  shown,  280. 

POST-MORTEM  EXAMINATION, 

what  is  sufficient  time  in  which  to  make,  34. 

admissibility  of  testimony  of  physicians  making,  does  not  depend 

upon  their  thoroughness,  37. 
evidence  of  indications  found  on  the,  187. 

rules  prescribed  for  making,  cannot  be  introduced  in  evidence,  401. 
value  of  services  in  making,  may  be  shown  by  whom,  385. 
physician  need  not  make,  without  extra  compensation,  423, 435.  436. 
POST-OFFICE  CLERK, 

as  expert  in  handwriting,  297. 

PREGNANCY, 

an  inadmissible  opinion  as  to,  34. 
expert  testimony  in  cases,  154. 
examination  of  the  person  with  a  speculum,  180. 
PRESUMPTION, 

that  persons  understand  questions  pertaining  to  their  own  business.  4. 

that  foreign  law  is  unwritten,  212. 

that  foreign  law  remains  unchanged,  213. 

that  dealers  are  acquainted  with  value  of  articles  dealt  in,  357. 

PRIEST, 

a.s  an  expert  on  mental  condition,  163. 
as  an  expert  as  to  matrimonial  law.  216. 
PRIVILEGED  COMMUNICATIONS.   See  CONFIDENTIAL 

COMMUNICATIONS. 

PROSTITUTE, 

compulsory  examination  of  the  person  to  determine  whether  a.  1  vi. 
QUALIFICATION  OF  EXPERTS.    See  COMPETENCY  OF 
EXPECTS. 

QUALITY, 

of  lumber,  opinion  as  to,  269. 
of  iron,  opinion  as  to,  27s. 
of  steel,  opinion  as  to.  280. 
QUESTIONS  OF  LAW, 
-    questions  to  experts  should  not  embrace,  80. 


INDKX. 
RAILROAD  EXPERTS, 

opinion  of,  as  to  negligence  in  removing  certain  brasses  from  ear 
wheel,  17. 

whether  prudent  for  a  man  to  make  coupling  in  a  certain  way.  is. 

whether  time  of  stoppage  of  train  long  enough  to  enable  passenger 
to  get  off,  28. 

as  to  prudence  on  the  part  of  passenger  injured,  28. 

expert  testimony  of  railroad  men  as  to  running  and  management 
of  trains,  236-245. 

expert  testimony  of  engineers,  236. 

as  to  possibility  of  avoiding  an  injury.  2:5' ;. 

effect  of  leaky  throttle  valve,  236. 

distance  within  which  cars  may  be  stopped.  '2:\7. 

expert  testimony  of  conductors,  238. 

expert  testimony  of  brakemen,  machinists  and  other  person-;.  23H-245. 

officers  of,  as  expert.*.  240,  241. 

expert  testimony  as  to  the  speed  of  trains,  24:5.  . 

opinions  of  persons  experienced  in  building  of,  as  to  cost  of  com- 
pleting, 365. 
RAPE, 

expert  testimony  in  cases  of,  150-15:5. 

opinion  of  physicians  that  there  has  been  actual  penetration.  152. 

opinion  of  physician  as  to  what  effect  rape  would  have  on  female 
sexual  organs,  153. 

REAL  ESTATE  AGENT, 

testimony  as  to  value  of  services  of,  378. 

competency  of  experts  as  to  value  of  real  estate,  ;?71-376. 

as  expert  on  value  of  real  estate.  371-377. 

REPUTATION, 

opinion  evidence  as  to,  12. 

REPUTATION  OF  EXPERTS, 

when  can  be  impeached,  85. 
when  other  experts  may  testify  to,  85,  86. 
RHODE  ISLAND, 

statutory  provision  concerning  comparison  of  handwriting  in,  314. 
comparison  by  experts  of  handwriting  in  juxtaposition,  not  allowed 

in,  326. 
comparison  of  disputed  writing  may  be  made  with   any  writin<r 

proved  to  be  genuine  in,  330. 
rule  in,  as  to  the  opinions  of  non-professional  witnesses  or.  the  value 

of  real  estate,  372-374. 
adnmsibility  of  opinions  and  statements  in  books  of  science  in,  403. 

ROBBERY, 

opinions  of  detectives,  as  to  the  manner  of,  30. 

RUPTURE, 

opinion  a?  to,  190. 


SANJTY.    Si'c  MKNTAI.  CONDITION;    INSANITY. 
(SCIENCE, 

the  term  defined,  24. 

admissibility  of  expert  testimony  as  to  matters  of,  24. 

opinion,  as  to  cause  and  effect,  35. 

teacher  of  natural  science  as  an  expert  on  gases.  47. 

opinions  of  non-professional    witnesses    on    questions  relating  to 

medical  science,  188-192. 
expert  testimony  in  the  science  of  la\v.  ]!i;i--_'2v 

SCIENTIFIC  BOOKS, 

their  relation  to  expert  testimony,  390-41!'. 
admissibility  in  evidence  of  certain  scientific  works,  391-394. 
admissibility  of  opinion  and  statement  contained  in  standard  treat- 
ises on  inexact  sciences,  rule  in  England  as  to,  394. 
rule  in  the  United  States,  as  to,  395-404. 
reason  why  such  books  not  received  in  evidence.  404-407. 
admissibility  for  purposes  of  contradiction.  407-408. 
right  of  expert  to  refer  to  or  cite  in  bis  testimony.  409. 
reading  from,  by  counsel  in  argument.  411 -41s. 

SEA-WORTHINESS, 

opinion  as  to.  229,  230. 
SEDUCTION. 

expert  testimony  in  cases  of.  1  .">.">. 

SHEPHERD, 

opinion  of,  as  to  age  of  sheep.  2G7. 

SHIP-WRIGHT, 

opinion  of,  232. 

SKi NATURE.     See  also  HAXDWIMTIM;. 
expert  testimony  as  to  disputed,  303. 

SKILL, 

expert  must  be  possessed  of  peculiar,  2.  21.  :«'.'. 

much  is  left  to  the  court  to  determine  whether  a  witness  is  pos- 

of,  40. 

whether  witness  has  peculiar  skill,  a  question  of  fact,  40. 
the  degree  of,  sufficient  to  qualify  an  expert.  42.  "•:>. 
not  necessary  that  expert  should  possess  the  highest  degree  of.  53. 
opinions  of  witnesses  as  to  whether  an  expert  has,  s:,. 
of  physician,  testimony  as  to,  in  malpractice  cases.  140. 
SOCIETY, 

whether  a  physician  as  an  expert  should  be  a  member  oi  medical 

society,  100. 
SOITII.  CAROLINA, 

doctrine  of.  as  to  the  comparison  of  handwriting  by  ••xjit-rts,  :t2»;. 
rule  in,  as  to  the  receipt  of  expert  testimony  with  caution.  451. 

SPECIALIST, 

whether  medical  expert  should  be  a,  1<>1. 


534  INDEX. 

SPECULATIVE  DATA, 

admissibility  of  opinion  based  on,  33. 

SPIRITS, 

opinion  as  to  evaportion  of,  146. 

STATUTES, 

courts  of  a  State  which  has  been  carved  out  of  another  State  take 
judicial  notice  of  statutes  of  latter  State,  197. 

courts  of  State  do  not  take  judicial  notice  of  statutes  of  another 
State,  199. 

of  a  State  are  taken  judicial  notice  of,  by  federal  courts,  198. 

of  the  federal  government  are  taken  judicial  notice  of,  by  State 
courts,  197. 

of  Wisconsin,  providing  for  qualifications  of  physicians,  100. 

providing  against  the  disclosure  by  physicians  of  information  ac- 
quired while  attending  the  patient,  105,  111. 

providing  as  to  proof  of  foreign  law,  210,  211. 

verification  of  written  law,  207,  209. 

comparison  of  handwriting,  311,  314. 

detection  of  counterfeit  notes,  346. 

additional  compensation  to  experts,  420,  422. 

of  new  Hampshire,  providing  for  expert  testimony  in  cases  of  value. 
352. 

STOCK  BROKER, 

as  an  expert  on  law  of  promissory  notes,  216. 
opinion  of,  as  to  technical  terms,  276. 
as  to  course  of  business,  272. 
opinion  of,  as  to  value  of  stock,  362. 

STOCK  RAISER, 

opinions  of,  267. 

STOMACH, 

chemical  analysis  of  the  contents  of,  136. 
STREET, 

whether  experts  may  testify  as  to  sufficiency  of,  31 . 

STUDY, 

as  a  qualification  for  an  expert,  45,  48. 

SUICIDE, 

inadmissible  opinion  as  to,  32. 
SURGERY.      See    MEDICAL    EXPERTS;     PHYSICIAN     AND 

SURGEON. 
SURVEYOR.     See  also  CIVIL  KXGIXKKI:. 

opinion  inadmissible  as  to  the  highest  part  of  a  hill,  30. 

testimony  of,  as  an  expert,  253,  256. 

opinion  as  to  location  of  particular  survey,  254. 

as  to  monuments  of  boundary,  254. 

cannot  give  a  construction  to  a  survey,  25.">. 


m»K.\.  535 

SURVEYOR- Continued. 

cannot  testify  as  to  .safety  of  a  highway,  2.V>. 
right  of,  to  use  maps  in  giving  testimony,  -J.'ii;. 
adniissibility  of  declarations  made  by  a,  256. 

SYMPTOMS, 

opinions  of  medical  experts  based  on  patient's  declaration  of,  113. 
testimony  of  experts  based  on  evidence  of,  118. 
of  disease,  medical  testimony  as  to,  130. 
of  poisoning,  chemists  and  physicians  may  testify  to,  135. 
unreliability  of,  in  cases  of  poisoning,  136. 
of  disease  in  animals,  who  may  testify  to,  193. 
TAILOR, 

opinion  of,  280. 

TECHNICAL  TERM, 

testimony  as  to  technical  terms  and  unusual  words,  273,  276. 

TELLER, 

of  bank,  as  expert  in  handwriting.  2!i7. 
the  detection  of  counterfeit  bank  notes,  344. 

TENNESSEE, 

compulsory  examination  of  the  person  in  criminal  cases  in,  179. 
TESTIMONY.     See  also  EXPERTS;  ADMISSIBLLITY  OF  EX- 
PERT   TESTIMONY:    V AM  K    OF    EXPERT    TESTIMONY; 
WEIGHT  OF  EXPERT  TESTIMONY;   OPINION   EVIDENCE. 

expression  of  an  opinion  by  the  court  as  to  weight  of,  32,  487. 

questions  should  not  call  for  a  critical  review  of,  61. 

expert  not  to  reconcile  conflict  in,  62. 

whether  an  expert  must  hear  all  the,  64. 

should  tend  to  establish  every  fact  embraced  in  a  hypothetical  ques- 
tion, 64,  65. 

expert  cannot  express  opinion  as  to  value  of  testimony  of  other  ex- 
perts, 74. 

weight  of,  a  question  for  the  jury,  78,  486. 

should  be  confined  to  the  points  in  issue,  87. 

when  evidence  of  collateral  facts  may  be  given,  87. 

illustration  of,  by  the  use  of  diagrams,  132,  142. 

reference  to  a  master  to  take,  in  cases  of  impotency,  174. 

relation  of  scientific  books  to  expert  testimony,  390. 

of  experts  as  found  in  the  reports,  reading  from,  -11*. 

instructions  as  to  the  nature  and  weight  of,  444,  487. 

the  value  and  weight  of,  444.  490. 

of  experts,  to  be  considered  like  any  other  testimony,  481,  486. 

right  of  jury  to  exercise  an  independent  judgment.  487. 

TEXAS, 

form  of  the  hypothetical  question  in,  s2. 

opinions  of  ordinary  witnesses  as  to  mental  condition  in,  161. 

compulsory  examination  of  the  person  in  criminal  cases  in,  179. 


536  INDKX. 

TEXAS — Continued. 

opinions  of  non-professional  witnesses  as  to  foreign  law,  217. 

competency  of  experts  as  to  handwriting  in,  296. 

statutory  provision  concerning  comparison  of  handwriting  in.  314. 

comparison  by  experts  of  handwriting  in,  322. 

photographic  copies  of  handwriting  in,  334. 

right  of  counsel  to  read  from  scientific  books  in,  416. 

extra  compensation  to  experts  in.  435. 

weight  of  medical  expert  testimony  in,  474. 
TEXT  BOOK.     See  also  SCIENTIFIC   HOOKS. 

right  of  expert  to  cite,  222. 

TOBACCO, 

opinion  of  expert  in,  279. 
TRADE, 

one  experinced  in,  as  an  expert,  •_'. 

expert  testimony  admissible  in  questions  of,  20. 

as  an  "  art,"  25. 

the  testimony  of  experts  in  the  various  trades,  229,  294. 

TRADE-MARK, 

opinions  of  experts  in  cases  of,  270. 
TRANSLATION, 

of  writings  by  persons  of  skill,  276. 

TRIAL.  See  also  COMPETENCY  OF  EXPERTS  ;  CROSS-EX- 
AMINATION OF  EXPERTS;  EXAMINATION  OF  EXPKRT.-; 
EXAMINATION  OF  THE  PERSON;  Cor  UTS. 

determination  of  preliminaries  before  expert  testimony  admissible,  7. 

court  must  determine  whether  witness  in  question  is  competent  to 
express  an  opinion,  8. 

what  questions  are  for  the  jury  to  determine,  13,  19. 

what  is  proximate  cause  of  injury  is  for  the  jury,  15. 

what  amounts  to  negligence  is  ordinarily  for  the  jury.  !.">. 

admissibility  of  expert  testimony  is  for  the  judge.  27. 

the  competency  of  expert,  a  question  for  the  judge.  39. 

how  objection  to  the  competenc\'  of  experts  should  be  taken,  r>7. 

the  examination  of  expert  witnesses,  60,  97. 

instructions  to  the  jury  concerning  testimony  based  on  hypothetical 
questions.  77. 

general  rules  governing  the  examination  of  witnesses,  87. 

excluding  experts  from  the  court  room  during  the  examination   of 
witnesses,  90. 

right  of  the  court  to  limit  the  number  of  expert  witnesses.  (.H  . 

by  whom  expert  witnesses  are  selected,  92-97. 

examination  of  the  person  to  determine  impoteucy,  171,  176. 

compulsory  examination  of  the  person  in  criminal  cases,  176-181. 

compulsory  examination  of  the  person  in  actions  for  damages,  181- 
185. 


IM>KX. 


TRIAL— Continued, 


refusal  to  be  examined  by  a  particular  expert  who  is  porsonalh  .•!,- 

noxious,  is:.. 

of  what  laws  courts  take  judicial  notice,  196.  T.i7. 
of  what  laws  courts  do  not  take  judicial  notice,  19S-20O. 
rule  as  to  the  manner  of  proof  of  the  written  lav,  of  foreign  states, 
905-910. 

discretion  of  court  a*  to  the  testimony  of  experts  to  prove   written 
law.  210,  211. 

whether  the  question  of  foreign  law  is  for  the  court  or  jury.  •_>•_>:>. 

interpretation  of  foreign  law  is  for  the  court,  2-'i;. 

comparison  of  writings  by  experts,  309-1314. 

proof  under  the  statutes  as  to  genuineness  of   handwriting   for  the 
purposes  of  comparison,  314-317. 

comparison  by  experts  with  writings  admitted    by,  to    be  genuine, 
317-323. 

comparison  by  experts  of  writings  in  juxtaposition,  325,  :;-.'7. 

the  right  of  comparison  with  writings  proved  to  be  genuine  for  the 
purpose,  327-330. 

mode  of  proof  when  comparison  i.s  allowed  with  writing  proved   to 
be  genuine  for  the  purpose,  330,  331. 

expert  should  have  before  him  in  court  the  writings  compared.  :i:i-_>. 
333. 

comparison  with  writings  made  on  the  trial  in  the  proof  of   hand- 
writing, 339,  340. 

form  of  question  to  expert  as  to  amount  of  damages  resulting  from 
a  particular  transaction,  366-371. 

whether  the  amount  of  damages  is  a  matter  of  testimony  or  for  the 
jury,  367. 

admissibility  of  medical  books  for  the  purpose  of  contradicting  an 
expert,  408. 

right  of  the  witness  to  use  standard  authorities  in  giving  testimony. 
409,  410. 

reading  from  scientific  books  in  argument,  41 1-1  is. 

cases  in  the  United  States  denying  to  counsel  the  right   fo   read   in 
argument  from  scientific  books,  413-41."). 

cases  deciding  that  counsel  may  lead  from  scientilie  l>ook<  in  argu- 
ment, 413. 

expert  cannot  be  compelled  to  attend  throughout  the,  for   the  pur- 
pose of  listening  to  the  testimony.  I- 1. 

the  right  of  a  court  to  express  an  opinion  on  the  facts.  1 1:\- 1  Hi. 

the  right  of  a  court  to  give  cautionary  instructions  in  certain  cases, 
446-448. 

instructions  as  to  the  weight   of  the   testimony  of   an  accomplice, 
146. 

cases  holding  that  expert  testimony  should  be   received   with   cau- 
tion, 451-456. 

cases  holding  that  expert  testimony  should  be  considered  and    tried 
by  the  same  tests  as  other  testimony,  456-4."^. 


538  INDEX. 

TEIAL— Continued. 

cases  holding  that  expert  testimony  is  entitled  to  little  weight,  458- 

469. 
cases  holding  that  expert  testimony  in  matters  of  medical  science 

is  of  great  value,  469-476. 
weight  of  the  testimony  of  physician  as  to  mental   condition,  476- 

480. 
weight  of  the  testimony  of  family  physician  as  to  mental  condition. 

480-485. 
the  right  and  duty  of  the  jury  as  to  expert  testimony,  486-492. 

UNDERWRITERS, 

when  may  testify  as  to  the  materiality  of  concealed  facts,  248. 
opinion  of,  as  to  increase  of  risk,  249. 

USAGE  OF  COURTS, 

as  testified  to  by  attorneys,  227. 

USAGE  OF  TRADE, 

evidence  as  to,  is  admissible  when,  271. 
testimony  of  business  men  as  to,  271,  272. 
who  are  competent  to  testify  as  to,  271,  272. 

VALUE  OF  EXPERT  TESTIMONY, 

based  on  hypothetical  statements  where  the  hypothesis  is  not  in  ac- 
cordance with  the  facts,  77. 

as  to  handwriting,  347. 

right  of  the  court  to  express  an  opinion  on  the  facts,  443-446. 

cautionary  instructions  as  to,  446-448. 

reasons  why  expert  testimony  should  be  received  with  caution,  448, 
451. 

cases  holding  that  expert  testimony  should  be  received  with  cau- 
tion, 451,  466. 

cases  holding  that  expert  testimony  should  be  considered  as  other 
testimony,  456,  458. 

cases  holding  that  expert  testimony  is  entitled  to  little  weight,  458, 
469. 

ca%es  holding  that  expert  testimony  in  matters  of  medical  science  is 
of  great  value,  469,  476. 

whether  the  testimony  of  physicians  as  to  mental  condition  is  enti- 
tled to  greater  weight  than  that  of  ordinary  witnesses,  476-480. 

weight  of  the  testimony  of  a  family  physician  as  to  mental  condi- 
tion, 480,  481. 

the  different  theories  as  to  value  discussed,  481,  482. 

upon  what  value  depends,  483-485. 

whether  jury  must  surrender  their  individual  judgment  in  deter- 
mining, 486. 

the  right  and  duty  of  the  jury  as  to  weght  and  value  of  expert  testi- 
timony,  488-492. 

whether  jury  may  disregard  testimony  of  experts,  487. 


INDEX.  539 

VALUE  OF  EXPERT  TESTIMONY— Continued. 

whether  jury  may  bring  to  the  consideration  of  the  subject  their 
own  general  practical  knowledge,  487. 

depends  upon  the  experience  and  knowledge  which  the  witness  h;i-. 
490. 

opinions  of  experts  cannot  prevail  over  actual  facts,  490. 

of  no  value  when  bused  on  the  testimony  of  a  witness  which  is  re- 
jected by  the  jury,  490. 

;i>  determined  by  the  number  of  experts  testifying,  492. 
VALUE, 

opinion  evidence  on  questions  of,  12. 

market  value  of  articles  usually,  348. 

general  rules  governing  the  proof  of,  348-351. 

expert  and  opinion  testimony  on  questions  of  value,  348-388. 

evidence  of,  as  governed  by  time,  349. 

evidence  of,  as  governed  by  place,  34i>. 

admissibility  of  evidence  of  actual  sales  of  like  articles,  349. 

admissibility  of  evidence  of  offers  to  sell  like  articles,  349. 

evidence  of  the  cost  of  an  article  as  determining,  350. 

competency  of  experts  on  questions  of,  351,  352. 

opinions  of  ordinary  witnesses  on  questions  of,  352,  354. 

when  the  opinions  of  ordinary  witnesses  on  questions  of,  are  inad- 
missible, 354-356. 

competency  of  witness  as  to,  must  first  be  shown,  356-361. 

evidence  of  a  dealer  in  articles  as  an  expert  as  to,  357. 

not  necessary  that  the  witness  should  have  personal  knowledge  of 
the  value  of  the  article,  358. 

opinions  of,  as  affected  by  remoteness  of  the  time  of  the  inquiry, 
360. 

opinion  of  author  as  to,  361. 

competency  of  witness  as  to,  in  particular  cases,  361-366. 

opinion  of  architect  as  to,  362. 

opinion  of  artist  as  to,  302. 

opinion  of  broker  as  to,  362. 

opinion  of  carpenter  as  to,  362. 

opinions  of  mechanics  and  machinists  as  to,  363. 

opinions  of  farmers,  graziers  and  drovers  as  to,  36:5. 

opinions  of  miscellaneous  witnesses  as  to,  365. 

amount  of  damages  resulting  from  a  particular  transaction,  366. 

when  the  question  of  damages  resulting  from  a  particular  transac- 
tion and  the  question  of  value  are  identical,  368,  369. 

opinions  of  real  estate  agents  as  to  value  of  real  estate,  371. 

value  of  real  estate,  371-377. 

whether  expert  as  to,  in  real  estate,  must  be  real  estate  agent.  372. 

of  personal  property,  testimony  as  to,  377. 

expert  testimony  as  to  value  of  services  generally,  378-380. 

of  legal  services,  380-383. 

of  services  rendered  by  physicians  and  nurses,  383-386. 


540  I.XDKX. 

VALUE— Continued. 

of  annuities,  expert  testimony  as  to,  386-388. 
of  foreign  currency  and  negotiable  security,  388. 

VERMONT, 

how  far  competency  of  expert    a  subject  for  review  by   appellate 

court  in,  55. 

form  of  hypothetical  question  in.  68. 
comparison  by  experts  of  handwriting  in,  323. 
opinion  of  attorney  as  to  manufacture  of  locomotives  iii.  366. 

VETERINARY  SURGEON, 

as  an  expert  in  the  diseases  of  animals,  192-194. 

VIOLENCE, 

whether  death  was  caused  by,  37. 

VIRGINIA, 

weight  of  medical  expert  testimony  in,  473. 

VOICE, 

identification  by  means  of,  lOre. 

WEIGHING  TESTIMONY, 

as  the  province  of  the  jury,  444,  486. 

right  of  jury  to  exercise  independent  judgment.  4s7. 

WEIGHT  OF  EXPERT  TESTIMONY, 

the  right  of  a  court  to  express  an  opinion  on  the  facts.  443-446. 

the  right  of  a  court  to  give  cautionary  instructions  in  certain  cases, 
446-448. 

cases  holding  that  expert  testimony  should  be  received  and  tried  by 
the  same  tests  as  other  testimony,  456-458. 

cases  holding  that  expert  testimony  is  entitled  to  little  weight.  l.Vs- 
469. 

cases  holding  that  expert  testimony  in  matter?;  of  medical  ,-cience  is 
of  great  value,  469-476. 

as  to  whether  testimony  of  physicians  as  to  mental  condition  enti- 
tled to  greater  weight  than  that  of  ordinary  witnesses,  476-4N). 

different  theories  as  to  the  weight  of  expert  testimony  iliM-n--.-'!. 
480-485. 

the  testimony  of  a  family  physician  as  to  mental  condition,  ixi-ls.').  * 

is  for  the  jury,  486. 

WELL  DIGGER, 

opinions  of,  as  to  the  character  of  the  soil,  279. 
WEST  VIRGINIA, 

weight  of  medical  expert  testimony  in.  17:!. 
WILL, 

evidence  of  subscribing  witnesses  to  a,  as  to  mental   condition.  156. 

form  of  question  as  to  testamentary  capacity,  165. 


INDKX.  ."it! 

WISCONSIN, 

law  of,  as  to  competency  of  physician-  a-  expert-  in.  100. 

medical  man  without  experience  as  to  poisons  cannot  be  an  expert 

on  that  subject  in,  102. 
evidence  a-  tu  malpractice  in,  U'.i. 
discretion  of  the  court  in,  as  to  the  proof  by  expert.-  "f  written  law, 

311. 

statutory  provision  concerning  comparison  of  handwriting   in,  '314. 
comparison  of  disputed  writing  may   be    made  from    any    writing 

proved  to  be  genuine  in,  330. 

admissibility  of  opinions  and  statements  in  books  of  science  in,  KM. 
right  of  counsel  to  read  from  scientific  books  in.  414. 

WITNESS.      Sec  also  EXAMINATION    or    Exi'Kin>;    COMI-I :- 
TKNCV  or  Exi'Kirrs  :   ADMISSIBILITY  or  EXPKIIT   TKSTI- 

MONY  :        C'o.Ml'KNSATlON     OF       Exi'KIITS  :       (  '  II-  >---Ex  A  M  I- 

NATIOX  OF  Exi-Kirrs:    TI;I\I.. 
competency  of  expert  witnesses,  38,  39. 
examination  of  expert  witnesses,  GO,  98. 
general  rules  governing  the  examination  of,  87.  DO. 
excluding  witnesses  from  the  court  room,  90. 
right  of  the  court  to  limit  the  number  of.  !tl . 
c.ii  the  subject  of  medicine,  surgery  and  chemistry.  93,  194. 
on  the  science  of  the  law.  195.  22!». 
un  the  subject  of  trades  and  arts,  22!i.  2M. 
on  questions  of  value,  348,  388. 
f»mpensatiou  of.  420,  422. 
the  weight  of  the  testimony  of,  443,  4'.'2. 

WORDS, 

defining  technical  words  to  the  jury,  27:.. 
expert  testimony  as  to  technical  words.  274.  27-'). 

WOl'NDS, 

what  is  meant  by,  123. 

whether  inflicted  before  or  after  death.  123. 

medical  testimony  relating  to,  123.  132. 

who  are  competent  to  testify  on  the  subject  «.»f,  124.  12<;. 

by  what  instrument  produced.  124.  127. 

competency  of  physician  to  testify  as  to,  whose  experience  with,  i- 

^ht,  124. 
whether  necessary  that  the   expert   should   have   seen    tin-    wound. 

125. 

whether  ordinary  witness  may  testify  as  to.  12:.. 
description  of  the.  125,  12G. 
experiments  upon  a  dynamometer.  12'i. 
testimony  as  to  the  means  by  which  inllicted.  127. 
whether  could  have  been  inflicted  accidentally.  127. 
what  testimony  is  admissible  concerning.  127-132. 


542  INDEX. 

improper  to  ask  witness  what  caused  a,  128. 

cause  of  a,  is  for  the  jury,  129. 

opinion  of  experts  as  to  the  probable  result  of,  129. 

opinion  of  expert  as  to  whether  is  mortal,  130. 

opinion  of  expert  as  to  whether,  is  permanent,  130. 

as  to  which  of  two  wounds  is  fatal,  130. 

as  to  the  time  when  a  wound  was  inflicted,  131. 

as  to  the  direction  from  which  a  blow  was  delivered,  131. 

use  of  maps  and  diagrams  in  describing  a,  132. 

WRITERS  ON  MEDICAL  JURISPRUDENCE, 

views  of,  on  exclusion  of  medical  treatises  from  evidence,  40<>. 
opinions  of,  as  to  additional  compensation  to  experts,  428. 

WRITING  MASTER, 

as  expert  in  handwriting,  298. 
WRITINGS.     See  also  HANDWRITING. 

expert  cannot  give  construction  to,  277. 

translations  of,  276. 

whether  in  a  simulated  hand,  299. 

whether  touched  with  a  pen  a  second  time,  299. 

whether  made  with  a  pen,  300. 

whether  made  by  the  same  person  and  at  the  same  time.  306. 

as  to  which  was  written  first.  300. 

opinions  as  to  alteration  of,  301. 

as  to  erasures  of,  301 . 

opinions  as  to  illegible  Avritings,  301. 

whether  ancient,  or  of  recent  date,  302. 

as  to  the  age  of,  302. 

as  to  improvement  in,  303. 

as  to  the  difference  between  two  signatures,  303. 

as  to  the  characteristics  of  different  signatures,  303. 
WRITTEN  LAWS.     See  FOREIGN  LAWS. 

proof  by  experts  of  the  written  law  of  foreign  States.  201.  204. 

manner  of  proof  in  the  United  States  of  the  written  law  of   foreign 
States,  205-210. 

proving  the  written  law  in  the  discretion  of  the  court  by  the  testi- 
mony of  experts,  210,  211. 

expert  testimony  as  to  the  construction  and  interpretation  of   writ- 
ten law.  212. 


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